Answer — Vasquez v. Hillery

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2 PR? No. 84-836

IN THE

Supreme Court of the United States

OctosBer Term, 1985

DanrtEL Vasquez, the Warden of

San Quentin State Prison,

Petitioner,

Booker T. Hitwery, JR...

Respondent,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURiAE

AND BRIEF OF THE NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Juntivs LeVoxxe CHAMBERS

Steven L. Wry Ter*

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

AntHoxy G. AMSTERDAM

New York University

Law School

40 Washington Square South

New York, New York 10012

Attorneys for the NAACP Legal

Defense & Educational Fund,

Inc., as Amicus Curiae

*Counsel of Reeord

No. 84-836

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

DANIEL VASQUEZ, the Warden of

San Quentin State Prison,

Petitioner,

Vv.

BOOKER T. HILLERY, JR.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF THE NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC., FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE IN SUPPORT

OF RESPONDENT

The NAACP Legal Defense & Educational

Fund, Inc., ("LDF") respectfully moves the

Court pursuant to Rule 36.3, Rules of the

Supreme Court of the United States, for

leave to File the attached brief as amicus

curiae in support of respondent. Respon-

dent has consented, but the State of

California has refused its consent.

LDF is a non-profit corporation

organized under the laws of the State of

New York. It was formed to assist blacks

to secure their’ constitutional rights

through the courts. Under its charter, LDF

renders legal aid to impoverished blacks

suffering injustice by reason of race. For

many years, its attorneys have represented

parties and appeared as amicus curiae in

this Court on a broad range of issues

including both the substantive and

procedural law relevant to cases of

racial discrimination.

This case involves questions regard-

ing appropriate remedies for racial

discrimination in the selection of grand

juries. Issues of racial discrimination in

jury selection have been a long standing

concern of LDF; it has represented

criminal defendants raising jury discrimi-

mation claims on direct appeal, e.g.,

Alexander v. Louisiana, 405 U.S. 625

(1972); Swain v. Alabama, 380 U.S. 202

(1965); represented potential black jurors

who have been excluded from jury service,

e.g., ‘Turner v. Fouche, 396 U.S. 346

(1970); and is participating in this Court

as amicus curiae in pending cases raising

important issues of jury discrimination.

E.g., Batson v. Kentucky, No. 84-6263.

This case presents the important

question of the remedy for grand jury

discrimination and a complicated issue of

habeas corpus jurisprudence. In light of

LDF's historic concern with and involve-

ment in jury issues, and in light of LDF's

recognized expertise in “the difficult

questions of law that frequently arise in"

these case, see NAACP v. Button, 371 U.S.

415, 422 (1963), we respecfully submit

that its participation will be of assist-

ance to the Court.

For the foregoing reasons, we

Table of Contents

respectfully request that leave to

7 Table of PEREEGS., ..060066606006008060006000000000000

participate as amicus curiae be granted.

STATEMENT OF THE rrr TT TTTTrTTTTeT.

A. Statement of Facts: Grand Jury

Respectfully submitted, nnd dnkdnnn66b00600060066866000000r

B. Course of PUOCSOGIIG Be c cqccccccccccccccecccccce ts

SUMMARY OF RIES 6 00 6000600006 500668 0008666 eeeee een

JULIUS LeVONNE CHAMBERS

STEVEN L. WINTER* GES 606 6O0666606066066068606606056066666660006000R

99 Hudson Street

16th Floor I. THE VERY NATURE OF THE CLAIM OF RACIAL

New York, N.Y. 10013 DISCRIMINATION IN THE SELECTION OF THE

(212) 219-1900 GRAND JURY RENDERS A HARMLESS ERROR

ANALYSIS pt err TTTTTTTTTrTrTrTT se

ANTHONY G. AMSTERDAM

New York University II. THE EXHAUSTION DOCTRINE IS FULLY SATIS-

Law School FIED WHEN THE STATE COURTS HAVE CONSIDERED

40 Washington Sq. S. THE SAME QUESTION PRESENTED IN FEDERAL

New York, N.Y. 10012 HABEAS «cc ccc Uae cece cece ccceccecccccecocccocc “eM

Attorneys for the NAACP A. The Federal Habeas Statute and the

Legal Defense & Exhaustion REQUITEMENt...cccccccccccccccsecesse dl

Educational Fund, Inc.,

as Amicus Curiae B. Neither the Habeas Statute, the Rules

Nor the Decisions of this Court Contem-

*Counsel of Record plate that Each Piece of Evidence Would

Have First Been Presented to the State

GE. co ccd ce 0beebecesooeeeseceeeeeoeeeseen

C. No Policy of Comity or Federalism

Requires the Repeated Return to the

State Courts to Exhaust Specific Items

of Evidence Relating to Claims Already

Fairly Presented to Those CourtS......ceeeeeeee-61

CREE SoS soooocececeeoeseeooeesosoceeeseooecoeoeo en

Table of Authorities

Cases:

Alexander v. Louisiana, 405 U.S. 625

(1972) cecccccccccceceeesessesssssesessssess

Anderson v. Harless, 459 U.S. 4 (1982) .....

Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252 (1977) «seeeee

Avery v. Georgia, 345 U.S. 559 (1952) ......

Beck v. Alabama, 447 U.S. 625 (1980) .......

Bob Jones University v. United States,

___ U.S. __, 76 LeEA.2d 157 (1983) «.-e0ee

Boulden v. Holman, 394 U.S. 478 (1969) .....

Brown v. Allen, 344 U.S. 443 (1954) ....se-.

Burns v. Estelle, 695 F.2d 847

(5th Cir. 1978) @eeeeeeeoeoeeeeeeeeeeee ee eee ee

Cassel v. Texas, 339 U.S. 282 (1950) .......

Castaneda v. Partida, 430 U.S. 482

Paje

3, 21, 30,

31, 38, 53

7, 8

(1977) Kins ait diinidiiadh casedindadiiiitngebeaks een 12, 22,

31,

Cuyler v. Sullivan, 446 U.S. 335 (1980) ....

Guice v. Fortenberry, 661 F.2d 496

(Sth Cir. 1981) (en DAMS) cccccccccccccccccs

Hawk v. Hann, 103 F.Supp. 138

(D.Neb. 1952) eeeeeceoevoeee ee eee eeeeeeeeeeee ee

Ex Parte Hawk, 321 U.S. 114 (1944) ...seeee-

o £1 «

29, 53, 56

ees

Oth et oe

Cases:

Hernandez v. Texas, 347 U.S. 475 (1954) ....

Hill Ve Texas, 316 U.S. 400 (1942) eeeeeeees

Hillery v. California, 386 U.S. 938,

reh'g denied, 386 U.S. 1000 (1967 .......

Hillery v. Pulley, 533 F.Supp. 1189

(E.D. Cal. 1982) e@eeeeoeoeoeaeeo ee eee eeeeeee eee

Hillery v. Pulley, 563 F.Supp. 1228

(E.D. Cal. 1983) eeeeeeoeaee eee eeeee eee ee eee

Hillery v. Pulley, No. 83-2017

(9th Cir. May 14, 1984) eeeeseeeoeeeoeeaeeeeeees

Hillery v. Sumer, 496 F.Supp. 632

(E.D. Cal. 1980) @eeeeseeeceoeoeoe eee ee ee ee eeeee 6

In re Hillery, 71 Cal. 2d 857, 79 Cal.

Rptr. 733, 457 P.2d 565 (1969) ...ccccceees

Hobby v. United States, 468 U.S. Coal

82 L.Ed.2d 260 (1984) eeeeeeaceseoee eee eeeeeees

Humphrey v. Cady, 405 U.S. 504 (1972) ......

Keeble v. United States, 412 U.S. 205

(1973) eeeeneeeaee ee eee eeeeeeeeeeeeeeeeeeeeee

Kemp v. Pate, 359 F.2d 749

(7th Cir. 1966) e@eeeeeoeseeceaeea eee ee eeeeeeeeee

Machibroda v. United States, 368 U.S.

487 (1962) eT Ty TY TTT TTT TTT TTT TTT TTTT TTT

Miller v. United States, U.S. ,

85 L.Ed.2d 99 (1985) e@eeeeeaeeeneeeeeeeeee eee

Neal v. Delaware, 103 U.S. 370 (1881) ......

Peters v. Kiff, 407 U.S. 493 (1972) ........

- iii -

28, passim

1, passim

24, passim

36, 38, 41

a &

Cases:

Paje

Picard v. Connor, 404 U.S. 270 (1971) ...47, 48, 49, 51

People v. Hillery, Cal.2d

34 Cal. Rptr. 853, 386 P.2d 477-( 1963) ....

People v. Hillery, 2 Cal.2d 692,

44 Cal. Rptr. 30, 401 P.2d 382 (1965) .....

People v. Hillery, 65 Cal.2d 795, 56

Cal. Rptr. 180, 423 P.2d 208 (1967) .......

People v. Hillery, 10 Cal. 3rd 897,

112 Cal. Rptr. 524, 519 P.2d 572 (1974) ...

Quercia v. United States, 289 U.S. 466

(1933) wcccccccccccvccscccccccccesesssesers

Roberts v. LaVallee, 389 U.S. 40 (1967) ....

Rose v. Mitchell, 443 U.S. 545

(1979) 600eceeesecoceceeéusdoedsesennsedeeeeen 24, 31,

35, 37, 39, 40

Runyon v. McCrary, 427 U.S. 160 (1976) .....

Sanders v. United States, 373 U.S. 1

(1963) cecccccccccccccccccsscesccsssseseees

Smith Vv. Texas, 311 U.S. 128 (1940) @eeeeoese08

Stirone v. United States, 361 U.S. 212

(1960) SCeoeeeeeeeeeeeeeeeeeSeeeeeseeeeeeeeee

Stone v. Powell, 428 U.S. 465 (1976) .......

Strickland v. Washington,

___ -U.S.__, 80 L.Ed.2d 674 (1984) .weccceee

Taylor v. Louisiana; 419 U.S. 522 (1975) ...

Thomas v. Zant, 697 F.2d 977

(llth Cir. 1983) @eeeeseaeveeeeeeeeeeee eee e eee

35-36

48, 58

ee A al it wa, Ne ne ws Oe + he

Cases

Townsend v. Sain, 372 U.S. 293

Paj e

(1963) Come reece sesessesecesesessesesessses dy 48, 50,

55,

United States v. Brandt, 196 F.2d 653

(2d Cir. 1952) eeeeeceaeoeee eee eeeeaeeeaeeeeeees

Vela v. Estelle, 708 F.2d 954

(5th Cir. 1983) eeeseeeaeoceaeeeeeeeeeeee ee ee eee

Wainwright v. Sykes, 433 U.S. 72 (1977) ....

Witherspoon v. Illinois, 391 U.S. 510

(1968) eeoeeeeseeeeeeeeseeeeeeeeeeeeeseeeseses

Other Authorities:

BD UBC. § GS cocccccccccccccccccccccccece

28 U.S.C. § 2254(D) .ccccccccccccccccesecccs

28 U.S.C. § 2254(C) coccccccccccccccccccsecs

28 U.S.C. § 2254(G) cccccccccccccvccccce 4,

H.R. Rep. No. 1344, 88th Cong.,

2d Sess. (May 6, 1964) eeeeeeeseeeeeeeeeses

S. Rep. No. 1791, 89th Conm.,

2d Sess. (Oct. 18, 1966), 1966 U.S.

Code Cong. & Ad. News 3663 eeeeeseoeaeee ee eee

Rule 21.1(a), Rules of the Supreme

Court of the United States e@eeeeeeoeneeeee eee

Rules Governing Section 2254 Cases

in the United States District Courts

Rule 4 eeeeeeaeoen eee eaeeeeee ee eeeeeeeeeeeeeeees

Rule 5 eeeeeeeeneeneeee ee eeeeeeeeeeeeeeeee tes

- Vo

58, 59, 60

18, 25

55-56

57, 58, 63

Rule 6 eeeeeeeveeeeeeeeeeeeeeeeeeveeeeeeeeeee

Rule 7 eeeereeee ee ee eee eeew ee eeeeeeeeeeeeeeee

Rule 8 .ccccccccccccvcccssccceces eccccccese

RULE 9 .cccccccccccccccccccccesecccesccsees

Advisory Committee Notes

RULEC 4 ccccccccccccccceccceccessssscesesese

RULE 5 cccccccccccccccccecccsccecs occcccees

Rule 8(a) cecccccccccccccsccsesssesessseees

Hart & Wechsler's THE FEDERAL COURTS AND

THE FEDERAL SYSTEM eeeeeeeeeeeeneeneeeeneeneeeeeee

-vi-

Page

21, 22

26, 58, 59

58, 59

23, 24

STATEMENYT OF ‘THE CAS:

A. Statement of Facts: Grand Jury

Discrimination *

The district court found that

respondent, Booker T. Hillery, was

indicted for murder in 1962 by a Kings

County, California, grand jury from which

all eligible blacks were excluded in

violation of the equal protection clause.

Hillery v. Pulley, 563 F.Supp. 1228 (E.D.

Cal. 1983) .!

The basic historical facts were never

in dispute. Potential grand jurors were

selected by the superior court judge from

the list of eligible jurors in the county.

Kings County had only one superior court

1 Mr. Hillery, ablack, was also tried and convicted

for the murder of a white by a petit jury that was

all white. All claims of exclusion of blacks from

Mr. Hillery's trial jury were dismissed by the first

habeas judge as "conclusionary and unsupported." See

n. 12 infra. Thus, the issue was not explicated at

the habeas hearing. Nevertheless, it appears that at

Mr. Hillery's trial, the prosecution exercised its

peremptory challenges to strike all blacks from the

venire. Hilley v. Pulley, No. 83-2017 (9th Cir.)

Clerk's Record Doc. No. ("C.R.") 5 at 11.

ofe

judge. At the time of Mr. Hillery's

indictment and trial, this judge was

Meredith Wingrove, who had served since

1956. By his own admission, R.T. 102,2

he never selected a black to serve on a

grand jury until 1963, the year after Mr.

Hillery's challenge to the composition of

the grand jury and trial. That first black

grand juror, Ann B. Cole, was -- as both

the California Supreme Court, J.A. 48, and

‘the habeas court, 563 F. Supp. at 1232 &

n. 8, found -- the first black ever to sit

as a grand juror in Kings County since its

incorporation in 1893.

While the black population of Kings

County was small, there were sufficient

eligible blacks to have appeared on grand

juries in the absence of discrimination,

Although blacks constituted only about 1%

of the county prior to World War II, post

2 Citations to the 1962 state court hearing are

designated "R.T." Citations to the record in the

Ninth Circuit are designated "C.R." Citations to

"J.A." refer to the Joint Appendix in this Court.

war migration brought increasing numbers

of blacks. Blacks constituted 3.9% of the

county by 1950 and 5.1% by 1960. J.A.

44-45. Blacks served as trial jurors

throughout this period even though, as

later developed at the habeas hearing, the

number of blacks over twenty-one years

old, the minimum age for jury duty at that

time, was slightly below the overall per-

centage of blacks in the county: about

3.8% in 1950 and 4.7% in 1960. 563

F.Supp. at 1232; J.A. 61.

In 1962, California law governing

eligibility for grand jury service

required that the potential juror be "of

Fair character, approved integrity, and

sound judgment." 563 F.Supp at 1231 & n.

3. The records of both the state court

and the habeas hearing make clear that in

1962 there were blacks in Kings County who

met these criteria. Judge Wingrove

mentioned Mr. Lloyd Welcher, who, he had

determined, was qualified to serve. Judge

oJeq

Wingrove nevertheless declined to submit

his name for the dubious reason that he

was employed.° It was also established

that blacks had served on petit juries,

J.A. 48, the qualifications for which were

essentially similar. 563 F.Supp. at

1245.4

3 As Judge Wingrove put it, "you can't expect to

put somebody on the Grand Jury who is going to have

to interfere with his employment too much.” 563

F.Supp. at 1233; J.A. 50.

The reliance on the fact of employment to disqualify

an otherwise eligible black is dubious in light of

Judge Wingrove's statements that he looked for

potential jurors “of the better type” and his efforts

"to get occupations, farmer, businessmen and other

various types so it will be real — a real represen-

tative group of people, of the better type." R.T. at

38. If Mr. Welcher had been unemployed would not

that have suggested to Judge Wing rove that he was not

"of the better type?"

It should also be noted that the habeas court found

"that grand jury service would have been a hardship

but that some blacks, if asked to serve, would have

made the sacrifice." 563 F.Supp. at 1234.

4 Indeed, when Judge Wing rove finally began seriously

to consider blacks for grand jury service for 1963,

he turned to Bessie Welcher, a black resident of the

county, who had previously served on Kings County

trial juries in the 50's and early 60's. He did not

select Mrs. Welcher in 1963 because she had served as

a trial juror in 1962; under the statute, jury

service in the immediately preceding year was a

disqualification. Deposition of Bessie Welcher at

11-12, C.R. 52. See discrsion infra.

At the habeas hearing, Mr. Hillery

submitted the testimony of elderly black

residents of Kings County and that of Mr.

Hillery's original trial counsel, Hugh

Goodwin, to corroborate that there were

qualified blacks eligible for grand jury

service in 1962. The habeas court specifi-

cally credited this testimony. > Together

with the evidence in the state court

record, it established that “there were

in Kings County in the 1950's blacks

2 The habeas court particularly relied on Mr.

Goodwin's testimony, 563 F.Supp. at 1233, which it

explicitly characterized as "credible." Id. at 1246.

Both in the petition for certiorari, at 16-17, and in

its brief on the merits, at 41-42, the state sets

forth the the substance of its cross-examination of

these elderly black witnesses concerning the qualifi-

cations for grand juror in an attempt to suggest to

the Court the unreliability of this testimony. But

the federal district court that heard this cross-exa-

mination, saw these witnesses, and aserved their

demeanor was in the best position to weigh the

reliability of their testimony and the success of the

attempted impeachment. Not only did the district

court specifically note the credibility of Mr.

Goodwin, it also "note[d] that the only thinj more

disturbing than the State's failure to introduce

expert statistical analysis was respondent's coun-

sel's pointless honing of his cross-examination

skills on the elderly black citizens of Kings

County...." 563 F.Supp. at 1242 n. 16.

=Sa

eligible for grand jury service, even

given the limited literacy and education

level that prevailed among the black

population at the time...." 563 F.Supp.

at 1234, 1232-33, & 1245-46.

Why these eligible blacks surfaced on

the county's petit juries but not its

grand juries is made clear on the face of

the state court record. For Judge

Wingrove explained how he chose poten-

tial grand jurors. Applying the openly

subjective statutory criteria, he looked

for “the better type of our citizens,” 563

F.Supp. at 1232; R.T. 37, “someone who has

some substance, ... someone who, in the

Court's opinion, is intellgent....” Id.;

R.T. 104. Thus, while Judge Wingrove

asserted that he tried to get a "“distribu-

tion of racial descents ... both sexes ...

occupations, farmer, business men and

various other types...," id.; R.T. 38,

this was qualified by his desire to obtain

"a real representative group of people, of

the better type." Id. (emphasis added).

AS a result, Judge Wingrove openly

acknowledged that he

never had a colored person on the panel

not through lack of desire, but purely

through lack of ability to find one

that the Court feels would make a

proper Grand Juror.

563 F.Supp. at 1233; R.T. 38.6

These statements are a candid

admission of discrimination under the then

governing law. "In explaining the fact

that no Negroes appeared on this grand

jury list, the [judge] said that [he] knew

none available who qualified...." Cassel

v. Texas, 339 U.S. 282, 287 (1950). Yet,

he also failed in his "constitutional

duty” to “seek to learn whether there are

in fact any qualified to serve...," Hill

v. Texas, 316 U.S. 400, 404 (1942), and

"to familiarize [himself] fairly with the

6 Judge Wingrove even touted his racial evenhan-

dedness in classic terms, R.T. 39: "My goodness, ...

for three or four years I palled [sic] around with a

colored boy and I will certainly be happy to name the

gentleman Gene Roberts, his father worked for my

father. I have many friends who are colored people."

R.T. 40-41.

qualifications of the eligible jurors of

the county without regard to race and

color." Cassel, 339 U.S. at 289. For, as

the district court found,

given the most generous reading of the

judge's description of his efforts to

fulfill his duty under Hill, Cassel,

and Smith [v. Texas, 311 U.S. 128

(1940)], it did not amount to much.

563 F.Supp. at 1248 n. 28.’

Judge Wingruve was far more success~

ful in finding eligible blacks after Mr.

Hillery's July 1962 challenge to the

composition of the grand jury. In late

1962 or early 1963, Judge Wingrove

contacted Mrs. Bessie Welcher concerning

service on the 1963 grand jury. Because

7 Judge Wirg rove made clear his view that , as far as

any duty to include blacks on the grand jury, "the

law certainly doesn't require such a thing." R.T. 59,

37. Indeed, he expressed his view that the Court's

jury discrimination cases applied to the South, not

California. R.T. 59-60; see n. 20 infra.

Judge Wingrove asserted that he had obtained some

names of eligible blacks from Mr. Hillery's trial

counsel , Hugh Goodwin, earlier that year (1962). It

was not made clear whether that was for the 1962 or

1963 grand jury. Mr. Goodwin denied any independent

recollection of that exchange. R.T. 42-43.

aQ~q

she had been as a trial juror in 1962, she

was disqualified by statute from grand

jury service in the immediately following

year. The judge then asked her to provide

the names of three qualified blacks, which

she did. This led to the ultimate selec-

tion of Ann B. Cole as the first black

grand juror ever to sit in Kings County.

See C.R. 52, Deposition of Bessie Welcher

at 11-12.

Finally, the finding of discrimina-

tion was premised on statistical analyses

of the historical data. At the request of

the federal district court judge, Mr.

Hillery produced expert testimony that,

even given the low number of eligible

blacks in Kings County, the probability

that the total absence of blacks on the

grand juries between 1900 and 1962 was due

to chance was 57 in 100,000 milion. The

expert also testified that if only the

years of Judge Wingrove's tenure were

considered, the probability that no

-9-

blacks would have been chosen to serve on

the grand jury if only random factors had

governed was two-tenths of one percent, or

two in a thousand. 563 F.Supp. at 1241;

J.A. 67.

Although the habeas corpus court

credited the expert's conclusion, 563

F.Supp at 1243, 1245, it did not do so by

rote. Rather, because of the state's

"baffling" failure to call a statistical

expert of its own, 536 F.Supp. at 1242 n.

16, and because of its failure to rebut

the statistical showing “through other

evidence, cross-examination, or argu-

ment...," id. at 1242, the habeas court

undertook its own statistical analysis.

Limiting itself to the years of Judge Win-

grove's tenure,” the district court

8 The expert had looked at the course of grand jury

selection in Kings County since the turn of the

century. The court, on the other hand, postulated

that the selection process over these years might, in

reality, be a discontinuous series because of the

change in the identity of the selector with the

ascension of each new superior court judge. The court

employed "a homey illustration... ," 563 F.Supp. at

1242, to make its point: the use of repeated statis-

-1@-

applied the standard deviation analysis

used by this Court in Castaneda v. Par-

tida, 430 U.S. 482, 496 n. 17 (1977). It

calculated that the difference between

the expected number of blacks (9.66) and

the actual number (0) was "just over three

standard deviations." 563 F.Supp. at 1244

& n. 23. It noted that the figure would

be even larger if the entire course of

conduct from 1900 onward were considered.

Id. at 1245.7 Thus, the district court,

tical sampling of a deck of cards in order to

ascertain whether the 8 of diamonds has been palmed

by the dealer is valid only if there has been one

dealer. "If, however, during the course of the game

in question, a different dealer was substituted now

and again, the probability that the final dealer

palmed the card cannot be calculated from the fact

that it is probable that there is no 8 of diamonds in

the deck.” Id. at 1243. Because of the failure of the

state to produce any rebuttal statistical analysis,

the court could not conclude from the record whether

the 1900 to 1962 period was a continuous or discon-

tinuous series. Id. Accordingly, it adopted the more

conservative assumption that it was discontinuous.

9 Of course, even the district court acknowledged that

the entire period from 1900 should be considered

because the continuous series analysis was probably

correct. Id. at 1243 & n. 18. Continuing with its 8

of diamonds metaphor, it recognized that, if the

deck also changed with each new dealer, and "the

experiment is conducted after each new dealer and the

probabilities after each such experiment is [sic]

=11-

even after exercising caution, finds

that standard deviation analysis

supports [the expert]'s conclusions

and, under the “rule of exclusion,"

indicates that “racial or other class-

related factors entered into the

selection process."

563 F.Supp. at 1245 (quoting Castaneda,

430 U.S. at 494 n. 13).

that there is no 8 of diamonds in the deck, then we

have powerful evidence concerning the house's policy

on cheating." Id. at 1243 n. 18. Transposinj the

metaphor to the problem at hand, it is clear that in

each year there was a pool of eligible yrand jurors

containing some blacks —- i.e., a deck containing an

8 of diamonds —- and in each year from 1900 to 1962

no blacks ever surfaced on the grand jury no matter

which superior judge —i.e., which dealer -- was

sitting . Accordingly, the inference of discrimination

is “powerful.”

Moreover, the historic record of total absence

of blacks from Kings County g rand juries is important

for one further reason. Amongst the circumstantial

evidence to be considered in making the "sensitive

inquiry" into discrimination is: "The historical

backjyround of the decision ..., particularly if it

reveals a series of official actions taken for

invidious purpose...."Arlington Heights v. Metro-

litan Housing Corp., 429 U.S. 252, 557-59 (1977).

us, even if the process of selecting grand jurors

since the turn of the century is considered a

discontinuous series, evidence of prior historical

practice would be relevant (to use the district

court's metaphor) to "the house's policy on cheatinj"

— i.e., the policy and practice that had historic

sanction when Judge Wing rove took over the selection

of grand jurors in 1956.

B. Course of Proceedings

In an indictment returned on June 27,

1962, an all white grand jury indicted Mr.

Hillery for murder. On July 16, 1962, he

filed a motion to quash the indictment on

the ground that blacks had been systemati-

cally excluded from Kings County grand

juries. J.A. 19-20. A hearing was held

on July 31, 1962, and the motion was

denied the same day. 10

The hearing was presided over by

Judge Wingrove, the only superior court

judge sitting in Kings County. All of

Judge Wingrove's predecessors were deceas-

ed. Because Judge Wingrove had personally

selected the grand jury that indicted Mr.

Hillery, and the seven preceding grand

juries as well, respondent asked Judge

Wingrove to testify. The judge declined,

10 Judge Wirg rove repeatedly obstructed Mr. Goodwin's

attempt to prove the historical exclusion of blacks

by calling the district attorneys who had practiced

before the grand juries, characterizing it as

"nejyative evidence" that would take too lon. R.T.

31, 33, 42, 45, 46, 47, 53. He made clear that he

would only give the hearing one day. R.T. 55.

-13-

R.T. 102, although there were state

procedures allowing transfer to another

judge that would have enabled him to do

so. 563 F.Supp. at 1230-31 n. 1.

Accordingly, he was not Sworn as a witness

nor subject to cross-examination. Judge

Wingrove did, however, make several

statements on the record; he ordered that

these statements be considered his

"testimony." R.T. 102.

The state introduced the census

figures from 1910 onward. These showed

that blacks constituted between .8% and

1.1% of the county population prior to

World War II, 3.97% in 1950, and 5.1% in

1960. J.A. 45. Respondent's allegation

that blacks had never served on the grand

jury was not disputed; it was further

supported by the testimony of the county

sheriff, who had resided in the county

since 1930, and a newsSpaperman, who had

worked on the local paper since 1910. The

county clerk testified that blacks had

-14-

served on trial juries since she had taken

office in 1953. J.A. 32, 39. It was also

established that, in the decade prior to

Mr. Hillery's indictment, only four felony

prosecutions were initiated by indictment,

although there had been over 1,000

criminal!! prosecutions during that period.

There had been only one indictment in

1962, Hillery's. J.A. 32-33. In addition

to Mr. Hillery, one other of the indicted

defendants was black. J.A. 33. Both the

prosecutor and the judge indicated that

the primary function of the grand jury was

to serve as a watchdog agency, supervising

the county government. J.A. 33; R.T. 107.

Judge Wing rove made extensive

comments on the record concerning both the

motion to quash and his role in selecting

the grand jury. His comments on the latter

issue have been described above, With

regard to the motion, he stated that "the

It was not explained whether the 1,000 criminal

prosecutions were all felony cases or whether they

included misdemeanor cases.

=15<

Court resents any accusations of discrimi-

nation shown by this Court...," R.T. 65,

and that “the Court very stoutly denies

and refutes and feels somewhat incensed

with the implication that there has been

any discrimination...." R.T. 64 (similar

statements appear at R.T. 36, 39). On the

ultimate issue of discrimination, he

asserted: "There certainly never has been,

as far as the present Court is concerned

.e. any systematic exclusion of anybody

from the Grand Jury because of any racial

descent...," R.T. 39, and that "“(ajs far

as the present Court is concerned ...

there has never been any feeling of

discrimination of any kind ... against

anyone...." R.T. 60 (similar denials

appear at R.T. 40-41, 105).

Respondent was convicted of first

degree murder and sentenced to death in

November 1962. As set out in the state's

brief, the evidence against Mr. Hillery

was entirely circumstantial. Both the

-16-

conviction and the sentence of death were

affirmed on appeal. People v. Hillery,

Cal. 2d ___, 34 Cal. Rptr. 853, 386 P. 24

477 (1963). Rehearing was granted; the

court affirmed the conviction, holding

that the circumstantial evidence was

sufficient to connect respondent to the

crime, but reversed the sentence. People

v. Hillery, 2 Cal. 2d 692, 44 Cal. Rptr.

30, 401 P.2d 382 (1965). In its second

opinion, the California Supreme Court

affirmed Judge Wingrove's ruling on the

grand jury discrimination issue as amply

Supported by the record. In assessing

that record, the California court emphasi-

zed Judge Wingrove's statements, devoting

just over half of its summary of the

factual record on the issue to those

statements. J.A. 49-50. This Court denied

certiorari, Hillery v. California, 386

U.S. 938, reh'g denied, 386 U.S. 1000

(1967),

three Justices dissenting on the

ground that the admission of evidence

-17<

concerning a prior conviction, relevant to

the issue of sentence, at a non-bifurcated

proceeding violated due process.

On remand, respondent was resentenced

to death. This sentence was affirmed. 65

Cal.2d 795, 56 Cal.Rptr. 180, 423 P.2d 208

(1967), cert. denied, 389 U.S. 986, reh'g

denied, 390 U.S. 913 (1968). Following

this Court's decision in Witherspoon Vv.

Illlinois, 391 U.S. 510 (1968), Mr.

Hillery filed an original petion for

habeas corpus in the California Supreme

Court asking that court to recall its

remittitur and judgment to consider

whether a death-scrupled juror had

impropecly been excused for cause at the

second penalty trial. The California

Supreme Court found a Witherspoon

violation and reversed the sentence of

death. In re Hillery, 71 Cal.2d 857, 79

Cal.Rptr. 733, 457 P.2d 565 (1969).

A third jury imposed the death

sentence. Mr. Hillery once again appeal-

-1@-

ed, raising claims challenging both the

sentence and the original, 1962 convic-

tion. On March 12, 1974, the California

Supreme Court affirmed the original

conviction but once again reversed the

sentence of death. People v. Hillery, 10

Cal.3rd 897, 112 Cal.Rptr. 524, 519 P.2d

572 (1974).

Proceeding pro se, respondent Hillery

then filed a petition for a writ of habeas

corpus in state court raising the grand

jury claim. The state trial court denied

the petition on January 30, 1978. J.A. 4.

The California Court of Appeal denied the

petition on March 8, 1978. J.A. 5. On

April 18, 1978, the California Supreme

Court also denied the petition. Id.

Still proceeding pro se, Mr. Hillery

filed a petition for a writ of habeas

corpus in the federal district court for

the Northern District of California on May

22, 1978. J.A. 5-6. It was transferred to

the Eastern District and assigned to Judge

-19-

MacBride. Id. On January 31, 1979, Judge

MacBride dismissed some claims! but, on

the grand jury discrimination claim, found

that Mr. Hillery had stated a prima facie

case of discrimination, issued an order to

show cause why the writ should not issue,

and directed the state to file an answer.

J.A. 69-76.

In its return to the petition, the

state agreed that Mr. Hillery had exhaus-~-

ted his state remedies by raising the

issue on direct appeal and in state habeas

proceedings. It nevertheless claimed that

federal habeas should be precluded because

Mr. Hillery had “an opportunity for a full

and fair litigation” of the claim and that

the state court “record clearly demon-

strates that there was no racial discrimi-

12 He dismissed a claim under the fourth amendment on

the basis of Stone v. Powell, 428 U.S. 465(1976). The

order also dismissed as “conclusionary and unsup-

ported" additional claims challenjing “the composi-

tion of his juries." J.A. 70 n. 1. See n. 1 Supra.

These were contained in a second pleading files on

July 26, 1978, that apparently never made its way

into the record. See Clerk's Index of Proceeding

(Docket Sheet) at 1.

~20-

nation in the selection of the grand

jury." C.R. 4 at p. 2.

Subsequently, Judge MacBride took

senior status and the case was transferred

to the Hon. Lawrence K. Karlton. Judge

Karlton reviewed the pleadings and the

State court record. On March 27, 1980, he

denied Mr. Hillery's motion for bail;

granted the motion to appoint counsel;

vacated Judge MacBride's prior order; and,

as provided by Rule 7 of the Rules

Governing Section 2254 Cases in the United

States District Courts, directed the

parties to supplement the state court

record. C.R. 8. Applying this Court's

admonition that a claim of grand jury

discrimination requires a "factual inquiry

++. that takes into account all possible

factors...," Alexander v. Louisiana, 405

U.S. 625, 630 (1972), Judge Karlton

concluded that "[t]o accomplish this, it

is necessary to supplement and Clarify the

State court record which is’ silent or

-21-

unclear as to a number of relevant

issues." C.R. 8 at p. 2.

Judge Karlton first directed the

state to provide "more figures ... demon-

Strating what portion of the Black

population of Kings County was eligible

for grand jury service." Id. at 3 (citing

Castaneda, 430 U.S. at 488-89 n. 8).

Pursuant to Rule 7(b) he also propounded

interrogatories "designed to clarify the

State court record and the issues in this

case...," C.R. 8 at 4, by fleshing out

various factual questions not here

relevant. Id. at 8.

Judge Karlton observed that the

state court record “contains no informa-

tion as to the results obtainable through

the application of statistical analysis to

the facts of this case." Id. at 3.

Because he understood Castaneda, 430 U.S.

at 494 n. 13, and Hernandez v. Texas, 347

U.S. 475, 482 (1954), to “focus[{] on the

likelihood that chance or accident alone

o22e

could account for the exclusion of a group

from grand jury service...," C.R. 8 at p.

3, Judge Karlton concluded "that the

application of statistical probability

analysis may be of substantial assis-

tance...," id. at 3-4, and directed the

parties to respond with their views on

both the appropriateness of such analysis

and how it should be presented.

The state responded with a motion to

dismiss premised on two grounds. C.R. 16.

First, it invoked Rule 9 and argued that

it was prejudiced in its ability to

respond to the petition because Judge

Wingrove had died in 1966. Second, it

argued that this Court's decision in Rose

v. Mitchell, 443 U.S. 545 (1979), "pre-

cludes supplementation of the state court

record...." C.R. 16 at p. 7. This latter

argument was premised not on any aspect of

the exhaustion requirement, but rather on

language in Rose that referred to the

habeas petitioners' evidentiary showing,

-23-

which had peen introduced in the state

courts, and concluded: "On the record of

this case, it is that testimony alone upon

which respondents’ allegations of discri-

mination must stand or fall." 443 U.S. at

570. C.R. 16 at pp. 9-11. From this

observation, the state abstracted a

general principle that a habeas court "is

limited to the record presented to the

State trial court under the clear autho-

rity of Rose v. Mitchell...." C.R. at p.

11.

Judge Karlton rejected both these

arguments. Hillery v. Sumner, 496 F.Supp.

632 (E.D. Cal. 1980). The Rule 9 claim

was rejected on alternative procedural

grounds, id. at 635-36, and one disposi-

tive substantive ground: Judge Karlton

posited the best factual assumption for

the state, "[a]ssuming, arguendo that the

loss of Judge Wingrove's testimony would

be sufficient prejudice to the state to

Support dismissal." Id. at 637. Reviewing

o24—

the “history of petitioner's state

proceedings...," id., he concluded that,

because of the principle of comity and the

then governing Ninth Circuit precedents,

the pending state proceedings meant that

"at the earliest petitioner could not have

filed in federal court until 1967..., and

perhaps not even until 1974 when the state

litigation was finally resolved." Id. 13 In

either case, Judge Wingrove had already

passed away before Mr. Hillery's claims

were ripe for federal habeas and, thus,

"no prejudice from delay suffered by the

State is attributable to petitioner

([Hillery]." Id. Although, Judge Karlton

did not determine whether the loss of

Judge Karlton reasoned that it was not until 1967,

when the California Supreme Court affirmed the

second death sentence , that the state proceeding s had

ended and that all ofMr. Hillery's claims were ripe

for presentation on federal habeas corpus. In fact,

however Mr. Hillery successfully reopened the state

proceedings by filiny an original habeas petition in

the California Supreme Court raising a Witherspoon

claim, That led to a new sentencing proceeding and a

third direct appeal , on which the California Supreme

Court rejected additional claims going to the 1962

conviction. Thus, in fact, the case was not ripe for

federal habeas until 1974.

-25-

Judge Wingrove's live testimony was in

fact prejudicial, it would seem clear

that the judge's uncross-examined, 1962

comments were as favorable a record for

the state as it was likely to have

obtained had he lived.

Judge Karlton also rejected the

state's contention that the habeas

proceeding was limited to the state court

record under Rose. He noted that "the

single sentence in Rose that the trial

judge's affidavit ‘formed no part of the

case put on by respondents" ... seems a

slender reed to base such a startling

departure from Rule 7(c), 28 U.S.C. §

2254(d), and Townsend v. Sain[, 372 U.S.

293 (1963)])." Id. Rather, he correctly

explained the Rose Opinion as concerning

"the procedural posture of the case,"

--i.e., the fact that the Sixth Circuit

premised “its finding of a prima facie

case" on matters first introduced on

~26@

rebuttal in the habeas proceeding. 496

F.Supp. at 638 (emphasis in original).

After the parties responded to the

court's interrogatories, the court held a

Status conference. At that time, the

parties agreed: (1) that Mr. Hillery's

evidence was sufficient to support an

order to show cause why the writ should

not issue; (2) that an evidentiary hearing

was necessary, in part to enable the

State to cross-examine Mr. Hillery's

witnesses; and (3) that the state

continued to maintain that “evidence

outside the record should not be allowed"

and preserved "this issue for appeal

purposes." C.R. 32 at p. 1.

Despite the stipulation, the state

filed a motion to dismiss and, shortly

thereafter, a motion to deny Mr. Hillery's

request for an evidentiary hearing. It

was in these motions that the state first

raised an exhaustion question with regard

to the "new" evidence. Although Judge

o273e

Karlton was “somewhat frustrated" by the

state's "notion that it may file a motion

to dismiss in a habeas corpus proceeding

whenever the spirit moves it to do so...,"

Hillery v. Pulley, 533 F.Supp. 1189, 1193

& n. 5 (E.D. Cal. 1982), he nevertheless

entertained the motion on the merits. '4

On the exhaustion issue, Judge

Karlton started from the premise that "it

is clear that the petitioner must have

presented to the state court essentially

the same claim as that presented to the

district court." Id. at 1197. “It is

equally clear...," he observed, "that a

habeas petitioner is not limited to the

record made in state court but that

evidence can and, in some cases, must be

14 Ordinarily, the exhaustion question is raised either

in the state's answer under Rule 5 or by way of a

motion to dismiss in lieu of an answer after the

habeas judge has determined under Rule 4 that summary

dismissal is inappropriate. In agreeing to the

stipulation, “the state admitted that summary

disposition was inappropriate." 533 F.Supp. at 1194.

Plainly, the state could have and should have raised

the exhaustion issue prior to stipulating that the

case could not be dismissed summarily but should

instead go to an evidentiary hearin.

= 28-

taken." Id. Noting that "[njeither the

cases, the federal statutes, nor the rules

‘strip the district courts of all discre-

tion to exercise their common sense...,'"

id. at 1199 n. 19 (quoting Machibroda v.

United States, 368 U.S. 487, 495 (1962)),

he concluded that “it defies logic to

assert that one likely result of granting

an evidentiary hearing -~ namely that the

district court will receive evidence not

presented to the state court -- requires

dismissal for failure to exhaust." Id. at

1199 (emphasis added).

Judge Karlton identified the three

items that the state objected to as "new"

evidence: (1) the addition of census data

for 1900; (2) the testimony of three

witnesses called to establish the eligibi-

lity of blacks for grand jury service and

other historical facts such as exclusion;

and (3) the statistical analysis of the

census data. 533 F.Supp. at 1200. On the

basis of “[{a] calm examination of the

~-29-

evidence...," id. at 1201, he rejected the

state's assertion that this "new" evidence

“dramatically changes" the claim.

The first two items, Judge Karlton

noted, were at best cumulative. The "new

evidence that blacks had never served on

the grand jury did not alter the claim:

That historical fact had been accepted by

the state courts. The "new" evidence of

eligible blacks was similarly cumulative

because that fact was established by Judge

Wingrove's statement that he declined to

appoint an eligible black.

Judge Karlton also rejected the

state's argument that the statistical

analysis “fundamentally alters” the claim

because it is “dispositive.” Statistical

analysis, he noted, is only one part of

"a factual inquiry ... that takes into

account all possible explanatory factors."

533 F.Supp. at 1202 (quoting Alexander,

405 U.S. at 630). “More important...,

Judge Karlton continued,

-30-

is the fact that respondent's argu-

ments misconstrue the nature of the

evidence in question. The testimony...

is simply the expert analysis of

evidence already before the court....

[S]tatistical analysis of census data

is the kind of information designed to

make the facts relative to the absence

of Blacks in grand juries significant,

i.e. to aid the trier of fact in

understanding the evidence before the

court.

533 F.Supp. at 1202. This conclusion was

corroborated, Judge Karlton observed, by

this Court's use of statistical analysis

in Alexander and Castaneda even though

such analysis was not part of the record

in the courts below. Id. at 1203.

Judge Karlton found that Hillery's

proffered evidence stated a prima facie

case under Castaneda and ordered an

evidentiary hearing. After the hearing, he

found that blacks had been systematically

excluded from Kings County grand juries.

He rejected the state's argument that

grand jury discrimination is harmless

error both on the basis of Rose vy.

Mitchell and because of the need to deter

=31-

discrimination and maintain the integrity

of the judicial process. 563 F.Supp. at

1252. Accordingly, he issued the writ. Id.

The Ninth Circuit affirmed, one judge

dissenting on the exhaustion issue.

Hillery v. Pulley, No. 83-2017 (9th Cir.

May 14, 1984). In a per curiam opinion, it

relied on “the reasons set forth is the

excellent and extensive District Court

Opinion granting the application...,”

citing each of Judge Karlton's three

published opinions. 563 F.Supp 1228; 533

F.Supp. 1189; and 496 F.Supp. 632.

SUMMARY OF ARGUMENT

For over 100 years, the Court has

held that racial discrimination in the

selection of the indicting grand jury

requires reversal of the resulting

conviction. This principle is supported by

five important considerations. First, the

very function of the grand jury is

distorted when identifiable groups with

distinct experiences and perspectives are

@32-

removed from the decision-making process.

Second, claims of racial discrimination

have a special constitutional force in

light of the fundamental concern with

racial equality that emerges from this

country's history. Third, the taint of

racial discrimination impugns the integri-

ty and legitimacy of the administration of

Criminal justice. Fourth, as a practical

matter, the remedy repeatedly affirmed by

the Court is the only effective one.

Finally, the notion that a subsequent

conviction renders a tainted indictment

harmless misconceives the role of the

grand jury. A grand jury not only decides

whether a criminal case should go forward,

it also decides how the prosecutor will

proceed by determining the scope and

severity of the crime charged. A harmless

error analysis is inapplicable because a

court cannot reconstruct how a properly

constituted grand jury would have charged

the defendant.

=-33~-

The version of the exhaustion

requirement proposed by the state has no

Support in the habeas statute, the rules

governing habeas proceedings, the prece-

dents of the Court, or any identifiable

policy of federalism. Once a habeas

petitioner has fairly presented the legal

and factual substance of his claim to the

state courts, he cannot fairly be penali-

zed for their failure either to afford him

a full and fair hearing or to consider his

claim in light of the governing consti-

tutional principles. No considerations of

federalism or sound judicial administra-

tion call for a rule that reduces the role

of a federal habeas judge to a rubber

stamp of the state process. Rather, the

habeas scheme long embedded in statute and

case law expects and requires federal

judges to conduct an independent, consti-

tutionally sensitive inquiry into allega-

tions of constitutional error. See, e.g.,

Brown v. Allen, 344 U.S. 443, 507 (1954).

-34-

ARGUMENT

I. THE VERY NATURE OF THE CLAIM OF

RACIAL DISCRIMINATION IN THE

SELECTION OF THE GRAND JURY

RENDERS A HARMLESS ERROR ANALYSIS

INAPPROPRIATE

The state's case for overruling a

century Of precedent only rehashes points

the Court has long, repeatedly, and

recently rejected. See, e.g., Rose v,

Mitchell, 443 U.S. 545 (1979).

It has been settled law since 1880

that the Civil War Amendments barred

the States from discriminating because

of race in the selection of juries,

whether grand or petty. As a result, a

conviction cannot stand which is based

on an indictment found by a2 grand jury

from which Negroes were kept because

of discrimination.... We ought not to

reverse a course of decisions of long

Standing directed against racial

discrimination in the administration

of justice.

Cassell v. Texas, 339 U.S. 282, 290

(1950) (Frankfurter, J., concurring) (citing

Neal v. Delaware, 103 U.S. 370 (1881)).

The doctrine of stare decisis carries

added weight in the context of the

fundamental national norm prohibiting

racial discrimination. See Runyon vy.

-35-

McCrary, 427 U.S. 160, 191 (1976)(Stevens,

J., concurring).

Five important considerations sustain

the time honored rule that grand jury

discrimination fatally undermines the

validity of the indictment and _ the

resulting conviction: First, the exclusion

of an identifiable segment of the commu-

nity from the the grand jury undermines

its function by

remov[ing] from the jury room qua-

lities of human nature and varieties

of human experience the range of which

iis unknown and perhaps unknowable.

Peters v. Kiff, 407 U.S. 493, 502 (1972).

This range of perspective is as critical

when the jury in employed at the charging

stage as it is at trial. In noting the

constitutional immateriality of the

ministerial position of grand jury foremen

in Hobby v. United States, 468 U.S...

82 L.Ed.2d 260 (1984), the Court affirmed

by necessary implication that the grand

jury itself is so significant to the

-36-

administration of justice that dis-

crimination in [its] appointment ...

impugns the fundamental fairness of

the process itself so as to under-

mine the integrity of the indictment.

Id., 82 L.Ed.2d at 266.15

Second, the fundamental norm prohi-

biting racial discrimination has special

constitutional force.

[T)here can no longer be any doubt

that racial discrimination ... vio-

lates deeply and widely accepted views

of elementary justice.... Over the

past quarter of a century, every pro-

nouncement of this Court and myriad

Acts of Congress and Executive Orders

attest a firm national policy to pro-

hibit racial segregation and discri-

mination.

Bob Jones University v. United States,

U.S. _—_, 76 L.Ed.2d 157, 174 (1983). That

racial discrimination in grand jury

selection offends this firm national

policy has been emphasized both by this

Court's decisions, see Rose, and by

congressional enactment specifically

15 See also id. at 267 (no constitutional error

"(slo long as the composition of the grand jury as a

whole serves the representational due process

value...").

-37<

making such discrimination a criminal

offense. 18 U.S.C. § 243; see Alexander,

405 U.S. at 629 n. 8.

Third, "the jury plays a political

function in the administration of the

law...." Taylor v. Louisiana, 419 U.S.

522, 529 (1975). The specter of racial

discrimination in the criminal justice

system -- particularly where the key actor

is the judge himself -- is “not ...

consistent with our democratic heritage"

nor conducive "to public confidence in the

fairness of the criminal justice system."

Id. at 530. It

destroys the appearance of justice

and thereby casts doubt on the

integrity of the judicial process...,

impair[ing] the confidence of the pub-

lic in the administration of justice.

Rose, 443 U.S. at 555-56. !6

16 Justice Stevens has expressed much the same

idea: "A rule that forbids discrimination in the

selection of a grand jury must be justified by the

overriding interest in maintaining the intejrity of

the judicial process -- both the actual fairness of

that process and the symbolic values that it embo-

dies." Hobby, 82 L.Ed.2d at 277.

~38-

The fact that California grand juries

Only rarely serve the charging function,

but ordinarily serve as “watchdog” over

county government, reenforces rather than

diminishes these concerns. Nothing could

be more central to democratic notions than

the grand jury's role as overseer of the

citizens' elected and appointed officials.

The exclusion of blacks from this aspect

of self-government is amongst "the

primary evil[s] at which the Amendments

adopted after the War Between the States

-+. were aimed." Rose, 443 U.S. at 554.

Moreover, the very rarity with which

California prosecutors seek indictment by

grand jury rather than proceeding by

information underlines the importance of

the grand jury's’ role. When a prosecutor

can charge unilaterally, he is likely to

seek indictment by grand jury only in

those notorious or controversial cases

where it is of heightened importance that

the legitimacy of the criminal justice

-39-

process be supported by the the imprimatur

of the community's judgment. But that

increases the importance of assuring that

no segment of the community is excluded

from the grand jury.

Fourth, as the Court noted in Rose,

reversal of convictions premised on

indictments tainted by racial discrimina-

tion is the only effective mechanism for

enforcement of these fundamental inter-

ests. Both criminal prosecutions and civil

actions are rare, and costly. 443 U.S. at

558. An aggrieved defendant is well

positioned to vindicate the underlying

societal interest in deterring discrimina-

tion; the potential loss of otherwise

supportable convictions is likely to be a

powerful deterrent to the selector who, as

here, is often an actor in the criminal

justice system. In this very case, Mr.

Hillery's motion to quash was the catalyst

that ended more than half a century of

-40-

total exclusion of blacks from the grand

juries in Kings County.

Finally, the harmless error rule is

particularly difficult to apply in cases

of grand jury discrimination. The argument

that conviction beyond a reasonable doubt

moots any taint at the charging level

misconceives the function of the grand

jury process.!7 Por the grand jury is more

than a simple binary gatekeeper deciding

whether a particular aefendant enters the

criminal justice system. It also performs

a discretionary role in shaping the

processes to follow by the terms of the

indictment it returns. If a grand jury

indicts only for a lesser’ included

offense, that is the greatest crime for

which the defendant can be convicted

regardless of the nature of the proof at

17 It also misconceives the nature of the constitu-

tional harm. If the constitutional injury is to the

“symbolic values" of the criminal justice process,

Hobby, 82 L.Ed.2d at 277, and the integrity and

aT ete leg itimacy of that process, then the subse-

quent conviction does not undo the harm. The process

still stands impugned.

-4}-

trial. See Stirone v. United States , 361

U.S. 212 (1960) (cited in Miller v. United

States, U.S. , 85 L.Ed.2d 99, 107

(1985)). Similarly, if it charges a higher

offense that includes lesser offenses,

that will affect the decision facing the

petit jury, increasing the reliability of

the later determination of guilt or

innocence. See Keeble v. United States,

412 U.S. 205 (1973); Beck v. Alabama, 447

U.S. 625 (1980).

These considerations reach their

zenith in the notorious or controversial

case. When the prosecutor seeks the

imprimatur of the grand jury on the

determinations of both whether and how to

proceed, he is asking for the community's

evaluation of the severity of the offense.

Consider for example a recent case of some

notoriety concerning allegations that a

white shot four blacks youths in a New

York subway. Two grand juries heard

Substantially similar testimony. One

-~42-

charged the defendant with attempted

murder, the other only charged him with

gun possession violations. Suppose the

difference between the two submissions was

not in the quantum of the evidence but in

the grand juries: one chosen from a

representative cross-section, the other

racially skewed. Plainly, the consequences

of the actions of these hypothetical grand

juries would not be erased by subsequent

trial determinations in either case, and

no amount of judicial hindsight could

parse out those effects.

The facts of this case suggest