On petition for writ of certiorari to the Supreme Court of
Kentucky.
The petition for a writ of certiorari is denied.
Justice MARSHALL, dissenting.
Petitioner is a Negro male who was 51 at the time he was
indicted for murder in Franklin County, Ky. He challenged the
composition of the grand jury that indicted him on the grounds,
inter alia, that women and young adults were substantially and
systematically underrepresented on grand juries in Franklin County.
Testimony from a statistician concluded that this
underrepresentation was statistically significant. Evidence was
also presented that the selection system was not facially neutral,
for the voter registration list from which grand jurors are
selected in the county contains information on the gender, race,
and date of birth of the prospective grand jurors. [
Footnote 1]
Despite petitioner's assertion and his substantiating evidence,
the Kentucky Supreme Court refused to consider the merits of this
challenge.
665
S.W.2d 304 (1984). Instead, that court held that, because
petitioner was a 51-year-old Negro male, he had no standing to
challenge the exclusion of women or young adults from grand juries
in Franklin County. The court rested its conclusion on the view
that challenges to the composition of a grand jury must be rooted
in the Equal Protection Clause of the Fourteenth Amendment rather
than in that Amendment's due process component. Thus, the court
below concluded that petitioner himself
Page 469 U.S.
984 , 985
had no recourse for challenging the imbalance of the grand jury
that indicted him. [
Footnote
2]
The conclusion of the Kentucky Supreme Court is flatly at odds
with the opinion announcing this Court's judgment in Peters v.
Kiff,
407 U.S.
493 (1972). That opinion, joined by three Justices, stated:
"[W]hen a grand or petit jury has been selected on an impermissible
basis, the existence of a constitutional violation does not depend
on the circumstances [i.e., the standing] of the person making the
claim . . . . [A] State cannot, consistent with due process,
subject a defendant to indictment or trial by a jury that has been
selected in an arbitrary and discriminatory manner, in violation of
the Constitution and laws of the United States." Id., at 498, 502,
2168 ( emphasis added). This three-Justice opinion therefore
concluded that a white male had standing under both the Equal
Protection and Due Process Clauses of the Fourteenth Amendment to
bring a racial-discrimination challenge to the state system used to
select his grand and petit juries. [
Footnote 3]
The standing question is particularly important in light of the
fact that, as of 1977, at least 22 States had some sort of
discretionary system for the selection of grand jurors. J. Van
Dyke, Jury Selection Procedures : Our Uncertain Commitment to
Representative Panels, Appendix B, pp. 264- 270 (1977). Because the
opinion announcing the judgment in Peters was joined by only
Page 469 U.S.
984 , 986
three Justices, Peters did not definitively resolve the standing
question raised in this petition for certiorari. The Court also
declined in Alexander v. Louisiana,
405 U.S. 625, 633-634,
1226-1227 (1972), to decide whether males could challenge the
statutory exemption of women from state grand jury service,
although Justice Douglas would have reached the question and
invalidated the statute on federal due process grounds. Id., at 634
( Douglas, J., concurring). At the same time, individual Members of
the Court have expressed the view that, because the Fifth Amendment
right to a grand jury does not apply to state prosecutions, Hurtado
v. California,
110
U.S. 516 (1884), "a state defendant has no right to a grand
jury that reflects a fair cross-section of the community ."
Castaneda v. Partida,
430 U.S.
482, 509, 1287d 498 (1977) (POWELL, J., dissenting).
These conflicting pronouncements from the Court and our failure
to speak definitively to the issue have spawned the sort of
confusion in the lower courts that calls for the exercise of this
Court's certiorari jurisdiction. In contrast to the views of the
Kentucky Supreme Court, which are shared by the Supreme Court of
Tennessee, see State v. Coe,
655
S.W.2d 903 (1983), at least two Federal Courts of Appeals have
stated that a male defendant does have a due process right not to
have women systematically underrepresented on the state grand jury
that indicts him. Gibson v. Zant,
705 F.2d
1543 (CA11 1983); Folston v. Allsbrook,
691
F.2d 184, 186, n. 3 (CA4 1982), cert. denied, 461 U.S. 939
(1983). In addition to this conflict, and perhaps more importantly,
I believe that certiorari is warranted because the decision below,
as well as the statements of my colleagues that would support it,
misconceives the nature of due process guarantees in the state
grand jury context.
The fact that a State has no constitutional obligation to
provide a grand jury for state criminal defendants simply does not
entail the conclusion that a defendant has no right to an impartial
and representative grand jury once the State does choose to make
use of grand juries. On the contrary, the insertion of a grand jury
into the process culminating in trial is of major consequence to
the criminal defendant. In Kentucky, as in most jurisdictions, the
grand jury both investigates alleged crimes and returns indictments
when it believes sufficient evidence of a crime has been
established. See Ky.Rev.Stats. 29 A. 210, 29 A. 220 (1980); see
also Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937 (1930 ). In both
roles, a grand jury that is biased by virtue of its
unrepresentativeness has
Page 469 U.S.
984 , 987
significant power to influence the fairness of the ensuing
trial; the scope and breadth of the preindictment investigation
certainly affects the ability of the State to mount a convincing
case at trial, and the fact that a body of the petit jury's peers
has seen fit to return an indictment may be a powerful sign to the
petit jury that the charges are well founded.
Given the potential power of the grand jury over the criminal
defendant, there can be no question that due process requires state
grand juries to be unbiased and impartial. See, e.g., Goldberg v.
Kelly,
397 U.S.
254, 271, 1022 (1970) (once State chooses to bestow
administrative benefits, due process require that administrative
decisionmakers be unbiased); Moore v. Dempsey,
261 U.S. 86 (1923)
(holding, many years before Constitution was held to require state
jury trials, that state jury must be unbiased). The real question
posed by this petition is whether the way to ensure that
impartiality is to require that grand juries be fairly
representative of the community in which they sit.
For two reasons already articulated in our cases, I believe the
answer to that question should be yes. First, a grand jury is a
collective decisionmaker designed both to find facts and to express
the community's moral sense on the important questions presented to
it. With respect to such a body, the exclusion of any large and
identifiable segment of the community removes from the jury room
"qualities of human nature and varieties of human experience, the
range of which is unknown and perhaps unknowable." Peters v. Kiff,
supra, 407 U.S., at 503, 92 S.Ct ., at 2168. The exclusion of such
a group deprives the grand jury of a perspective on human events
that may have unquantifiable but fully legitimate significance with
respect to the issues presented. See Ballard v. United States,
329 U.S. 187,
193-194, 264 ( 1946) ("The truth is that the two sexes are not
fungible; a community made up exclusively of one is different from
a community composed of both; the subtle interplay of influence one
on the other is among the imponderables. To insulate the courtroom
from either may not in a given case make an iota of difference. Yet
a flavor, a distinct quality is lost if either sex is
excluded").
Second, once a State chooses to employ grand juries, those grand
juries become integral elements in the system of criminal justice
in that State. Law is not a process by which a society actually
arrives at objective truth, but rather a means for structuring the
truth-seeking process so that the answers it yields will be
accepted as morally legitimate by the community; it is this
Page 469 U.S.
984 , 988
acceptance that enables the verdicts of the jury system to be
treated as " true." Imperative to the integrity of that system and
to its perceived legitimacy is the perception that any biases from
whatever source, including divergent cultural and historical
experiences, be minimized. As we have said in an analogous
context:
"Selection of members of a grand jury
because they are of one race and not another destroys the
appearance of justice and thereby casts doubt on the integrity of
the judicial process. The exclusion from grand jury service of
Negroes, or any group otherwise qualified to serve, impairs the
confidence of the public in the administration of justice. . . .
'The injury is not limited to the defendant-there is injury to the
jury system, to the law as an institution, to the community at
large, and to the democratic ideal reflected in the processes of
our courts.' " Rose v. Mitchell,
443 U.S. 545, 555-556 [ ,
2999-3000] (1979) (quoting Ballard, supra, [329 U.S.,] at 195 [] )
(emphasis added).
The allegation that, at this time in our history, women are
being excluded from grand jury service in some counties of
Kentucky-and that potential defendants are being investigated and
indicted by such grand juries-surely calls into question the
legitimacy of the system of justice in those counties. To sweep
this allegation aside with the syllogism that, because there is no
right to a state grand jury, there is no right to a fairly
representative one, is to elide the practical and symbolic
importance of state grand juries.
Finally, I note two of the serious incoherencies that would
result from a decision that the Due Process Clause does not give
petitioner standing to raise his grand-jury composition challenge.
First, there is no dispute that a defendant has long had the right
to challenge the composition of a state grand jury with respect to
a cognizable group of which he himself is a member. See, e.g.,
Strauder v. West Virginia,
100 U.S.
303, 309 (1880). Although the Court has traditionally discussed
this right in equal protection terms, it makes little sense to
conceive of the right as solely an equal protection one, for the
defendant in these cases is not asking to sit on the grand jury but
rather to be fairly treated by it. Yet once this is recognized as
the fundament of the right at stake, there is no logically
defensible or analytically coherent way of arguing that the
defendant is not also harmed when any "distinctive" group in the
community is underrepresented on his grand jury, see Duren v.
Missouri,
439 U.S.
357, 364, 668 (1979). As Taylor
Page 469 U.S.
984 , 989
v. Louisiana,
419 U.S.
522, 531, 698 (1975), makes clear, women are such a group.
[
Footnote 4] Second, in most
States, as is true in Kentucky, see Ky.Rev.Stat. 29 A. 060
(Supp.1984), the same statutory procedures are used for selecting
both grand jurors and the petit jury venire; it is irrational and a
little unseemly to say that, with respect to the same defendant,
the very same procedures (indeed, the very same jury wheels) are
both constitutionally valid and invalid-valid when the grand jury
is being picked but invalid when used to pick the petit jury
venire.
The opinion of the court below, which complains that "federal
decisions have enshrined the statistician on the throne of
expertise," 665 S.W.2d, at 306, makes clear that some lower courts
refuse to take seriously the principle that state grand juries must
be impartially constituted. [
Footnote 5] Language from some of our opinions, and
statements of individual Members of the Court, may encourage this
response. Yet neither precedent nor logic suggests such a result.
Accordingly, I believe the petition should be granted, and I
respectfully dissent from the Court's failure to do so.
Footnotes
Footnote 1 The voter lists
themselves were fairly representative of women, although there was
no evidence of their representativeness with respect to young
adults.
Footnote 2 The court did
hold, as our precedents command, that petitioner had standing to
challenge the exclusion of Negroes from the grand jury. However,
the court rejected this claim on the merits by relying in part on
the faulty premise that a study establishing a statistically
significant violation of the fair-cross-section requirement did not
create a prima facie case of underrepresentation when the violation
was shown to exist only over a 2-year period; apparently, the court
below believed a far longer period of underrepresentation had to be
proved to establish a prima facie case. Our cases have never
imposed such a stringent requirement; indeed, in Duren v. Missouri,
439 U.S.
357, 366, 669, 58 L. Ed. 2d 579 (1979), we held that a
demonstration of significant underrepresentation in every jury
venire "for a period of nearly a year manifestly indicates that the
cause of the underrepresentation was systematic-that is, inherent
in the particular jury-selection process utilized." That same
requirement would seem to apply here, for grand juries in Kentucky
generally sit for 20-day periods. See Ky.Rev.Stats. 29A.210(3)
(1980).
Footnote 3 Three other
Justices reached the same result, but based their decision on the
conclusion that standing was available in Peters to " implement the
strong statutory policy" of 18 U.S.C. 243, which prohibits States
from disqualifying state grand jurors on account of race. 407 U.S.,
at 505 (WHITE, J., joined by BRENNAN and POWELL, JJ., concurring in
judgment).
Footnote 4 To resolve the
standing question presented by this petition, we therefore need not
address the issue of whether young adults constitute a " cognizable
group" under the Duren standard.
Footnote 5 This refusal is
further illustrated in the Kentucky Supreme Court's cursory
treatment on the merits of petitioner's claim that Negroes were
systematically underrepresented on grand juries. See n. 1, supra.
Indeed, the Kentucky court's disregard for the methodological
principles laid down in Duren provides an independent reason in my
mind for granting certiorari.
Comments
Be the first to comment
Leave a Comment