Opinion — Alexander v. Louisiana

"ALEXANDER v. LOUISIANA’ 25

“, © ‘ALEXANDER ». LOUISIANA _

CERTIORARI TO THE SUPREME COURT OF LOUISIANA

Petitioner, a Negro, attacks his rape convittion in Lafayette Parish,

‘which was affirmed by the Louisiana Supreme Court, contending -

that the grand jury selection procedurés followed in his case were

invidious!y discriminatory against Negroes and, because of a stat-

‘ utory: exemption provision, against women. The jury commis-

-Sioners (all white) sent out questionnaires (including a space for

racial designation) to those on a list compiled from nonracial’

sources, Of the 7,000-odd returns, 1015 (14%) were from Ne-

groes, though Negroes constituted 21% of the parish population

_ presumptively eligible for grand jury service. By means of two

culling-out procedures, when racial identifications that the com-

missioners had attached to the forms were plainly visible, the pool

- was reduced to 400, of ‘whom 27 (7%) were Negro,-from which

group-the 20-man grand jury venires were drawn, ‘Petitioner’s

venire included one Negro (5%),‘and the grand jury that indicted

- him had none. There was-no evidence of conscious racial selection

_ and one commissioner testified that race was no consideration.

Held: ° : : ££ inte:

1, Petitioner made out a prima facie case of invidious racial dis-

crimination in the selection of the grand jury that’ indicted’ him—

not only on 4 statistical basis but by a showing that the selection -

procedures were not racially neutral—and the State, which did not. ;

adequately explain the disproportionately low number of Negroes

‘throughout the selection process, did not meet the burden of re-

butting the presumption of unconstitutionality in the procedures

used. Cf. Avery.v. Georgia; 345 U..S. 559; Whitus v. Georgia,

- 885 U.S. 545. Bb. 628-632. | | ,

‘2. Petitioner’s contentions regarding discrimination against

255 La. 941, 233 So. 2d 891, reversed. SLR are cot

Ware, J., delivered the opinion of the Court, in which Burczn,;

C. J., and Brennan, Srewarr, Marsi , and Biackmoun, JJ.

joined, and in Part I of which Dovatas, J., joined. Dovetas, J.,

- filed a concurring opinion, post, p. 634, PowELt and REHNQUIsT,

JJ., took.no part in the consideration or decision of the case. .@

—

women in the selection of grand jurors are not reached. Pp. 633-

S

wae

. OCTOBER TERM, 1971

“Opinion of the Court 3 405 U.S.

Charles Stephen Ralston argued the cause for peti-

. tioner. With him on the brief were Jack Greenberg,

James,M. Nabrit III, Margrett Ford, and.Charles Finley.

Bertrand DeBlanc argued the. cause for respondent.

With him on the brief were Jack P. F. Gremillion, At-

_ torney General of Louisiana, Harry Howard, Assistant.

Attorney General, and Charles R. Sonmer.

_ Birch Bayh filed a brief for the National Federation

of Business and Professional Women’ . —_— Inc., as

amicus curiae urging reversal. :

Mk. Justice Wuire delivered the opinion of va Court.-

: ‘Aftey_a jury trial in the District Court for the Fif-

teenth. Judicial District of Lafayette Parish, Louisiana,

petitioner, a Negro, was convicted of rape and sentenced

to life. imprisonment. His conviction was‘ affirmed on

appeal by the Louisiana Supreme Court,’ and this Court

granted certiorari.” Prior to trial, petitioner had moved

to quash the indictment because (1) Negro citizens were. -

included on the grand jury list and venire in only token _

numbers, and’ (2) female, citizens were systematically —

‘excluded from the grand jury list, venire, and impaneled —

. grand jury.’ Petitioner therefore argued that the indict-

ment against him was invalid because it was returned

: by @ grand jury #mpaincied from a venire made up con-

':.255 Ta. 941, 233 So. 2d 891 (1970). Petitioner was indicted for {

aggravated rape, and°a 12-member. jury upanimously returned a -

verdict of “Guilty without Capital Punishment.” _ ee

2401 U. 8. 936 (1971).

2 * Paaiids Gos ‘aes hes shins Ga peed A tei coe

~ jury that convicted him. The principles that ‘spply to the system- _

atic exclusion of potential jurors on the grounds of race are es-

sentially. the same for grand juries and for petit juries, however.

Pierre v. Louisiana, 306 U. Beta tae AED. oe gamally died

& Te Deon IF U8. a0 (6A).

ALEXANDER ». LOUISIANA oy en

bd

me te Opinion of. the Court

- trary to the requirements of the Equal Protection Clause

_and the Due Process Clause of the Fourteenth Amend-

_ ment. Petitioner’s motions were denied.

According to 1960 U. S. census figures admitted into —

_ evidence below, Lafayette Parish contained 44,986 per- ©

‘sons over 21 years of age and therefore. presumptively

eligible for ‘grand jury service;* of ‘this total, 9,473

‘persons (21.06%) were. Negro.* At the hearing on peti-

tioner’s motions to quash the indictment, the evidence

revealed that the Lafayette Parish jury cofmission con-

_ sisted of five members, all of whom were white, who had

been appointed by the court. “The commission compiled .

a list of names from various sources ‘(telephone directory,

city directory, voter registration rolls, lists prepared by

the school board, and by the jury commissioners them-

selves) and sent questionnaires to the persons on this list

to determine those qualified for grand jury service. The

questionnaire also included-a space to indicate the race. -

of the recipient. Through this process, 7,374 question- .

naires were returned, 1,015 of which (13.76%) were from.

Negroes," goed oy iter yg Tor meetin .

The general qualifications for jurors set by Louisiana law are

that a person must be a citizen of the United States and of Louisiana

Page aR RE Cappel. gull gai le

ice, be at least 21 years old, be able to réad, and speak the

oye ml a of serving ve

as a juror of a mental or /physical infirmity,” and “[nJot be .

; for a felony, nor have been convicted of a felony

for which he has not been pardoned.” ‘La. Code Crimi. Proc., Art.

‘ 401 (1967).

‘8 Teskhanomy. wt thio Wnasihig: cn ‘idee’ enction: 26< Qiu Sin biclbsb-

ment also revealed that there were 40,896 registered voters in the.

parish. Of this total, 17,803: were white males, and 16483 were

white females; 8578 were Negro'males, and 3,087 were Negro fe-

. ‘males. App. 38.

iors “One hanced and hyn quatre I mo rail dg

nation. seas

a8 OCTOBER TERM, 1971 .-

Opinion of the Court 3 . 405 U.8.

questionnaire an: informatio card designations among

other things, sh, teen, Xp. pieon, and a white slip :

indicating simply the name and address of the person. ..

The commissioners then culled out about 5,000 question-

naig, ostensibly on the ground that these persons were

not: qualified for grand jury service or were exempted

under, state law. The remaining. 2,000 sets of papers

were placed on a table, and the papers of 400 persons -

were selected,-purportedly at random, and placed in a _

box from which the grand jury panels of 20 for. Lafayette

Parish were drawn. _ Twenty-seven of the persons thus

selected were. Negro (6.75% )." On petitioner’s grand

jury venire, one of the 20 persons drawn was Negro

(5%), but. none of the 12 persons on the grand jury .

that indicted him, drawn from thie 20, was Leamctals

- For over 90 years, it has been established that vie al

-inal conviction of a Negro.cannot stand under the Equal

ae ene’

‘ “Protection Clause of the Fourteenth Amendment if it is . -

based on an indictment of. a grand jury from which

Negroes were excluded by reason of their race. Strauder

_ ww. West Virginia, 100 U.S. 303 (1880); Neal.v. Dela-

‘ware, 103 U.S: 370 (1881). Although’a defendant has no»

right to demand that members of his race be ‘included on “_

the grand*jury that indicts him, Virginia v. Rives, 100

U. S. 313 (1880), he is entitled to require that the State

not deliberately and systematically deny to members of .

~ » his race’the right to participate as jurors in. the-admin- —

. * There are some inconsistencies in the record as to the total num-

hee of Negtoes in this gitup. The State introduced a certification

by the clerk of the court stating that,there were 25 Negroes and four

persons: with no race shown. App. 15. A: count of the actual

list- of jurors, however, shows 27 Negjoes snd five persons with ino"

race. App. 16-24. . iS Toe Pe

»

>

ALEXANDER ». siangd Sas -

Gut. :. Opinion of the Court, €

istration of justice* Ex parte Virginia, 10 U. 8. 339°

(1880) ; Gibson v. Mississippi, 162 U. 8.565 (1896). Cf. -

_ + Hernandez v.. Texas, 347 U. 8. 475 (1954). It@ia only -

. the application of - _ settled. principles . that. is™at

* issue here. 3

This is not a case where it is claimed that diere have

been no Negrées’ called for service within the last-30

years, Patton v. Mississippi, 382 U. S. 463, 464 (1947);

only one Negro chosen within the last 40 years, Pierre

v. Louisiana, 306 U. 8: 354, 359 (1939); or no: Negroes

‘selected “within the. memory of witnesses who had lived’

[in the area] all their lives,” Norris. v. Alabama, 294

U. S. 587, 591 (1935). Rather, petitioner argues that,

in his case, there has been a consistent process of pro-

gressive and disproportionate reduction of the number of .

Negroes eligible to serve on the grand jury at each stage

of the selection process until ultimately an all-white. Beare

grand ‘jury was selectéd to i him.

‘In Lafayette Parish, 21% of.the population was Negro

_ and 21 or over, therefore.p ptively eligible: for grand

jury service. Use of supe by the jury com-

missioners created a pool of possible grand jurors which

was 14% Negro, a reduction by one-third of possible’

black grand jurors. The commissioners then twice culled

_ this group to create a list of 400 prospective jurors, 7%

of whom were Negro—a ea reduction by one-half.

7 *Section 4 of the 1875 Rights Act, 18 Stat. 336, now

codified as 18 U. 8. C. § 243 and reinforces ‘this constitu-

tional right: “No citizen i all other qualifications which

are or may be prescribed by, law shall be disqualified for sérvice as

grand or petit juror in any court of the United States, or of any

State on account of race, color, or previous condition of servitude;

and whoever, being an officer or _peraon charged with any duty

in. the selection or summoning of°jurors, excludes. or fails. to sum-

' mon any citizen for such cause, shall be fined not: more than $5,000.” —

+. -* pps we

aS

rem

“¢ whe

F

* 630 | OCTOBER ‘TERM, 1971 © «= ° “*

; Opinion of the Court 405 U.S.:

| ‘The percentage dropped to 5% on petitioner’s grand jury +.

‘venire. and to zero on the grand jury that actually

indicted him. Against this. background, petitioner argues

‘that the substantial disparity between the proportion of

blacks chosen for jury duty and the proportion of blacks

in the,eligible population raises.a strong. inference that

~ racial discrimination and not chance has produced this

- result because elementary principles of probability make

it extremely unlikely, that a-random selection ‘process

would, at each stage, have so consistently reduced the

_ number of Negroes.’

- This Céurt has never announced mathematical one

ards for the demonstration of. “systematic” exclusion of

- blacks but has, rather, emphasized that a factual inquiry

is necessary in each case that takes into account all -

ete. 3 explanatory - factors. The progressive decima-

_tion of potential Negro grand jurors is indeed. striking

here, but we do.not rest our conclusion that petitioner

has. demonstrated a prima facie case of invidious racial

- discrimination on statistical improbability alone, for the

selection procedures themselves were not racially neutral.

’ The racial designation: on both the questionnaire and the

- informatian card provided .a clear. and easy opportunity

for racial -discrimination. At two crucial steps in the

selection process, ‘when the number of returned ques-

‘tionnaires was reduced to 2,000 and when the final selec-

tion of the 400- mpmes was made, these racial identifi- © -

‘ cations were visible on the forms used by the jury |

commissioners, although there is, no evidence that the

: commissioners ney selects by Tace. _ The situa-

_ ® We take note, ‘a8 we did in Whitus v. Ghorgit, 385 U. s. 545, 552°

n. 2 (1967), of petitioner’s demonstration that. under one statistical ~

technique of calculating probability, the chances that 27 Negroes

would have been selected at random for the 400-member final jury

list;when 1,015 out of the 7,374 questionnaires returned were from

- Negroes, are one in 20,000. Brief for Petitioner 18 n. 18.

_. ALEXANDER v. LOUISIANA 631

625 3 a "Opinion of the Court_

tion here-is thus similar to Avery v. Georgia, 345.U. S.

559 (1953), where the Court sustained a challenge to

an array of petit.jurors in which the riames-of prospec-

tive jurors had been selected from segregated . tax lists.

Juror cards were prepared from these lists, yellow “cards

being used:for Negro citizens and white cards for.whites, —

Cards were drawn by a judge, \and there was no evidence

of | specific discrifaination. The Court held that such

evidence was unnecessary, however, given the fact. that.

no Negroes had appeared on the final jury: “Obviously

that practice makes it easier for ‘those to“ discriminate

who -are of a mind to discriminate.” 345 U. S., at 562.

Again in. Whitus v. Georgia, 385. U. S. 545. (1967), the .

~ Court reversed the conviction of a defendant who had

been tried before an all-white petit jury. Jurors’ had.

- been selected from a-one-volume tax digest divided into

- separate sections of Negroes and whites; black taxpayers

_also had a «¢e)” after their names as required by Georgia -

“Slaw at the time. The-jury commissioners testified that

they were not aware of the “(c)” appearing after the

names of the Negro taxpayers; that they had never in-

cluded or exeluded anyone because of race; thatth

- knew personally; and that the jury list they compiled

had had no designation of race on it. The county from

which jury selection was made was 42%. Negro, and

27% of the county’s taxpayers were- Negro. Of the 33

persons drawn for the grand jury panel, three (9%)

_ were Negro, while on the 19-member grand jury only

one was Negro; on the 90-man venire from which the

petit: jury was selected, there were seven Negroes (8%), _

but no Negroes appeared on the actual jury which tried

petitioner. The Court held that this combination: of

- factors constituted a prima facie case of discrimination,

and a similar conclusion is mandated in the present case.

‘Once a prima facie case of invidious discrimination -is

ey had -

' placed on the jury list only those persons whom they

es .

.

wv

established, the burden of proof shifts to the State té

_ OCTOBER TERM, 1971 7

’ Opinion of the Court 405 U.S.

rebut the presumption. of unconstitutional . action by

showing that permissible racially neutral selection cri-

teria and procedures have produced the: monocliromatic

result. Turner v. Fouche, 396 U. S. 346, 361 (1970) ; .

Eubanks v. Louisiana, .356 U. S. 584; 587 (1958). The

State bas not carried this burden in this case ;/it has not

_ adequately explained“the elimination of Negroes during

‘the process of seleeting the grand jury that indicted

petitioner. As in Whitus v. Georgia, supra, the clerk

of the court, who was also a member of the jury commis-

sion, testified that no: consideration was given to. race

during the selection procedure. App. 34. The-Court .

has'squarely held, however, that: affirmations of good faith

-in making individual selections are insufficient to dispel.

® prima facie: case of systematic exclusion. _TJ'urner v.

-. Fouche, supra, at 361; Jones v. Georgia, 389 U: S. 24;

- 25 (1967); Sims v:. Gasela, 389 U. S. 404, 407 (1967).

“The result onawe discriminatio whether or not -it

of any individual

jury commissioner.” » Hernandez v: ‘Texas, 7 U. S., at

482. See also’ Norris v. Alabama, 294 U. S., at 598. The

clerk’s testimony that the mailing list for questionnaires

- was compiled from nonracial sources is not, in itself,

adequate to meet the State’s burden of proof, for the-

opportunity to discriminate was presented at later stages —

in the process. Thé commissioners, in any event, had

a duty “not to pursue a course of conduct in the admin-

istration of their office which would-operate to discrim-

inate in the selection of jurors on racial grounds.” Hill

v. Texas, 316 U. S. 400, 404 (1942). See also Smith v.

Texas, 311 U. S. 128, 130 (1940). Cf. Cartersv. Jury

“Commission, 396 U. S. 320, 330 (1970). We conclude,

_ therefore, that “the opportunity for discrimination was

present and [that it cannot be said] on this record that

it was not resorted to by the commissioners.” -Whitus

v. Georgia, supra, at 552.

~~ s@ntment or indictment by‘a grand jury. -In Duncan v.

. Louisiana; 391 U. S: 145 (1968); the Court held: that _

*

ALEXANDER v. LOUISIANA 633

@

625. Opinion of the Court

II oa

_, Petitioner also whallenges the Louisiana statutory”

exemption. of women~who do not volunteer -for grand

jury service. Article 402, La. Code Crim. Proc. ‘This

Claim is n6vel. in this Court and, when urged by a

Male, finds no support in our past cases. The strong

_ constitutional and statutory policy against racial diss

* ¢rimination has permitted Negro defendants in criminal — |

_ cases to challenge the systematic exclusion of Negroes

from the grand juries that indicted them: Also, those

groups arbitrarily. excluded from grand or ‘petit jury

~ Service are themselves afforded an appropriate remedy. —

_ Cf. Carter v. Jury Commission, supra. But there is

nothing - in : past, adjudications suggesting that -Peti- |. |

_tioner himself has been denied equal protection by =

the alleged exclusion of women. from. grand jury

service. Although the Due Process Clause guarantees

petitioner a fair trial, it does not require the States

to observe the Fifth Amendment’s provision for pre-. __

because trial by jury in criminal cases under the Sixth

Amendment is “fundamental £6 the American scheme of _»

_ justice,” id., at 149, such a Mght was guaranteed to de--

- fendants in state courts by the Fourteenth Amendment,

but the Court has never held that federal concepts of a.

“grand jury,” binding on the federal. courts under the

Fifth Amendment, are obligatory for the States. Hurtado ~~ ;

V. California, 110 U. 8. 516, 538 (1884).

Against this background and because petitioner’s con-

_ viction has been set aside on pther grounds, we follow

~ our usual custom of: avoiding decision of constitutional

- issues unnecessary to ,the decision of the case, before us.

Burton v. United States, 196 U. S. 283, 295 (1905).

' See Ashwander v. Tennessee Valley Authority, 297 U. S.

288, 346-348 (1936) (Brandeis, J., concurring). The

a

OCTOBER. TERM, 1971 —

Doveuas, J, cobeurring < 050.8,

. State may or may ink recharge petitioner, ’ @ properly

- constituted grand jury may or may not return another

indictment, and petitioner may or may not be convicted.

again. See Ballard v. ne S. 187, 196 _

(1946). ‘i Hy Bonlsy . . 3

aw igen isgder, dpe Seis: \ Reversed.

Mr. Juarice Powzun a Mr. JUSTICE Pl

toak no part in the consideration or decision of this case.

\

Mr. Ae Dovanas, concurring.

While I join Part J of the Court’s opinion, I am cone

_ vineed we should also. reach the constitutionality. of? . y

Louisiana’s exclusion of women from jury service. The

issue is squarely presented, it has been thotoughly briefed |

and argued, and it’is of recurring impor . TheCourt —

purports. to follow “our. usual custo ” of avoiding un- -

_ necessary constitutional issues. But that cannot be the _

=: sole rationale, for_both- questions are of constitutional _

dimension. We could -just- as well say that deciding

the ‘Gonstitutionality of excluding women from juries.

renders it unnecessary to reach. the question of racy

‘exclusion. _-. wit

Air aes bmceaned kek the saaial caiaon aden pio:

“easier” analysis. But this Court does not sit to de-

cide only, “easy” questions. And even when faced’ with:

questions, we haye often decided

cases on alternate ‘grounds where.a decision on only one

would have been dispositive. See, L. Jes Dunn v. Blum-

" stein, ante, p. 330. | “

_ Petitioner complains of the exclusion of blacks and ~~ -

women from the grand-jury which indicted him. Con®

ceivably, he could have also complained of the exclusion

__of several other minority groups.” Would he then be rele-

gated to suffer repetitive re-indictment and re-conviction

‘while this court. considered. the exclusion of each group

in & snparaie lawsuit?

| ALEXANDER», LOUISIANA. 685

625: —* Dovaras, J., coneurting eee Ae

I believe the time has come ‘to reject the dictum in

Strauder v. West Virginia, 190 U. S. 303, 310, that a

_ State “may- confine” jury service “to males.”. I would. — . e

here reach the question we reserved in Hoyt v. Florida,

_ 368 U. 8, 57, 60, and hold that Art. 402, La, Code Crim. ~

_ Proce. as applied to exclude women 4s a class ‘from.

Lafayette Parish jury rolls, violated petitioner Alex-

andes’s constitutional right to an impartial jury drawn

from ‘a group. representative of & cross-section of the A.

community.?

. the composition of the grand jury that indic

It. is irrelevant to our analysis that pare attacks ~ :

him, not: . |

the petit jury which convicted him, for it is clear that a. eg

State which has a grand jury procedure must admini Ae

that. system consonant with the Federal Constitttion.

The Court asserts, however; that. “federal concepts” of

_* & grand jury do not Obligate the States, and cites Hurtado

V. California, 110 U. S. 516, 538. Ante, at 633. But

' Hurtado supports no such: Proposition. That case 3

merely held that the Fifth Amendment grand jury re- 3

‘quirement was not binding on the States.’ It said nothing

as to the constitutional requirements which obtain‘once |§

8 State chooses ‘to provide & grand jury; and we‘are

directed to. no other case’ which does speak to the subject. © «_

_ But this Court has said time and again, regardless of a

State’s freedom to reject the-federal grand jury, and to :

reject even the petit jury for offenses punishable by less_

than six months’ imprisonment, Baldwin v. New York,»

399 U. S. 66, “Once the State chooses to provide grand -

‘of the parish in'which she resides a written declaration of her desire.

females from the jury rolls is not: of significance, for his claim rests,

not on equal ptotection principles, but on the right of any defendant.

”

*The fact that Alexander is a male challenging the exclusion of

. to an impartial jury, no-matter what his seX OF race. .

Sra Waa an ee

BN

oo

‘tive of the community.” 396 U.S., at 330. . The Court.

- -was speaking of grand an ‘petit. juries when it said in

~ Brown v: Allen, 344 U. 8,448, 474: “Our duty to protect

. the federal constitutional rights of all does not-mean we

- must. or should impose on states our conception of the

character and intelligence for that civic duty.” \ (Em-

| va the Court in Pierre v. Louisiana, 306 U. S. 354, 358:

' “Indictment by Grand’ Jury and trial by jury cease to -

‘harmonize with our traditional concepts of justice at the.

very moment particular groups, classes or races. . . are

Taree Leeiene, 819°0: 8.

ee eee OCTOBER TERM, 1971

a | " Dovaras, J, concurring . 405 U.8. er -

- and petit. juries, distin: or not constitutionally Fequired , .

to do so, it must hew to federalConstitutional cri-

teria... a Carter v. v. dary Commission, 396 U. S. 920,

Seno >

a

At ta-tertiicmiens clear that just such a “federal con- —

“stitutional criteri[on]” is that ‘the grand jury, just as .

the petit. jury, must. be drawn ‘from a representative

cross-section. of the community. - - The Court. was speak-

"ing of both grand and petit juries in Carter v. Jury Com-.

mission, supra, when; quoting Smith v. Texas, 311 U. S.

128, 130, it defined the j jury as “a body truly representa-

proper source of jury lists, so.long as the source reason-

ably reflects a cross-section of the population suitable

supplied.) As- Mr..Justice Black said, speaking

excluded as such from ‘jury service.’ a Footnote

omitted.) 5 :;

The requirement that a jury reflect. a ‘ crpeeauniick of the

community occurs throughout our jurisprudence: “The

American tradition of trial. by jury, considered in con-

nection with either crunanal or ciyil proceedings, £ neces-

8 While Carter arose sada the Equil Protection Clause, at con-

cerned the right of prospective jurors excluded from the venire solely

by reason of their race, the analysis is the same in the instant case,

where the question is the accused’s right to an impartial jury. . .

SOP a,

.

an

alee ALEXANDER ». LOUISIANA gz

: sii. contemplates an impartial j jury drawn: feaeas & CrOss-: >

"section of the community. Smith. v, Texas, 311 U. S.

128, 130; Glasser v. United States, 315 U. 8. 60, 85.”

| “Th Vv. Southern Pacific Co., 328 U. §..217, 220. ‘Accord, |

Wilkams v. Florida, 399 .U. S: 78, 100; Witherspoon v.

Illinois, 391 U. 8. 510, 520; Bailard v. United States, 329 _

U.S. 187, 192-193; Nemesis Bennett, =». 2d 698,

122-7244. ioe age

This is entity the constitutional infirmity of: the a

Louisiana statute. For 4 jury list from which: women

have been systematically excluded 4s not sepromatitative

of the ‘community.

“It is said, however: that an all : male. panel drawn

- from the various groups within a community will

be as truly representative as if women were in- |

cluded. “The théught i is that the factors which tend —

to influence’ the action of women are the same as

those which influence the action of men—person-

ality, background, economic .status—and not sex.

_ Yet. #% is not. enough to say that women . when

. ”° sitting as jurérs neither act nor. tend to act as a

class. Men likewise do not act as a class. But, if

the shoe were on the other foot, who would claim

4 The cases "most precisely articulating the requirement. that a

.jury reflect ‘a cross-section of the community arose; undet our

- supervisory, power over the federal courts. See, e. g., Ballard

v. United States, 329 U. S. 187; Thiel-v. Southern Pacific Co., 328

U. 8. 217; Glasser v. United States, 315 U. S. 60. The detail

. with which these cases were. written, however, simply reflects

' our obligation to provide guidelines for the federal system. It

is consistent ‘with our principle: “of federalism that- the States be

\. permitted greater’ latitude in fashioning their jury-selection pro-

_ cedures, but to avoid consitutional infirmity the result must be de-

signed to produce ‘a representative cross-section of the. community.:

Brown v. Allen, 344 U. 8. 448, 474; Carter v. Jury Commission, 396 .

U. 8. 320, 322, 338. re . . 6

YW .,

e ‘ : —

Fe al ht ee OCTOBER TERM, cam oe

7 Dovaras, J., congurting

: alk

re a jury was truly EA of the com-- .

" munity: if all men were intentionally and systemati-. -

Cally excluded from the panel? The truth is that

the two séxes are not fungiblé; 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. A

The exclusion of one may indeed’ make the jury”

less representative of the community than hould be

- true if an economic or racial group -were excluded.”

Ballard v. United States, supra, at 193-194. (Em-

phasis supplied; footnotes: omitted. ) eile

The record before us, moreover, inidisputably: Peveals

" that such’ agsystématic exclusion operated with respect

to the Lafayette. Parish jury lists. There were no‘ women

on the grand jury that indicted petitioner, and there

were no women on the venire from which the jury was

chosen. While the. venire was selected from returns to -

questionnaires sent to parish residents, not a single one

of the some 11,000 questionnaires was even sent to a .

woman. This was done cr ctaperer AM

~-

5 Mr. LeBlanc, clerk of the court in Lafayelte Parish, ae a méem-

ber of the parish jury commission, testified as to th by which

the venire was chosen at the hearing on the motion to quash

Alexander’s indictment:

_. “A, The slips or list that. are put “in the general venire box’ are

made from’ qraiennen that I mailed Sat.

“Q Now, who. is ‘this sation sent to? How ‘is that

7 " determined? -

&

‘A. To the different people in the Failed by the registrar of voter's

list and the ae: book, city. directory, different lists that are

»

, id

i

sistant District Attorney,” and that.he had “sent her at [sic] ngs _

p "Testimony of Mr. LeBlanc: See nn. 5-6, supra

4

: _ ALEXANDER v. LOUISIANA. 99,

_ The State relies on the fact that the automatic exemp,

tion: it grants to: women ‘is the same’ as the one up- 2 ee

"held in Hoyt v. Florida, 368 & 8. 57. In Hoyt, however, oe

‘there were women on. the jury ‘rolls, and the’ jury com- - |

missioners had made good-faith efforts to include women

on the jury lists despite the fact that they had an auto- ;

matic exemption unless they volunteered -for service.

Id., at 69 (Warren, C. J., concurring). Here, on. the other '

hand, only the feeblest efforts were made to interest:

women if service,* and there was testimony that only a

single-wotnan had filled out a jury service’cuestionnaire!

~. This, out of, & parish population of 45,000 adults, 52% Ae

_ Of whont were female.

The absolute zemption Provided by Louisiana, and tite

no other State,* betrays a view of .& woman’s Tele which Le

- submitted by school board or any list that we can find that we think

we got address [sic] for the mixed race one way or the other, -

“Q, Was ‘the questionnaire mailed to any women at’ all? ae: *

“A. We have received some ‘that was filled in by some ladies. I.

think one. Pes ie

. “Q. Did you mail any to any women intentionally ‘or. did’ you ae

-intentigtially' exclude women when you mailed them?

° : “A. We didn’t mail any to the women.” ‘App, 35, 53.

* The only evidence in the record that any. effort whatsoever was

me expended to encourage women to volunteer for jurf service was a

statement by Mr. LeBlanc that he had “discussed that with the As- ae

ent women’s clubs to -explain to dhe women the possibility of

on the jury.” App. 54. ‘He also averred that “we're working. . y

on the women to submit names and interition to serye.” Ibid.

at indicated in-n. 5, stpra, however, these efforts produced but

App. _ SpE %

* No State now prohibits women from service on juries altogether, ‘

. _ Alabama's prohibition having been ‘found unconstitutional in White

a ke ‘ - P 4

ms 7 i _% foe

uN . ~¢€

. . e

640.» OCTOBER TERM, a

-Doveias, J., cunitiing 405 U.S.

cannot withstand scrutiny under ‘modern silat +

We once upheld the constitutionality of a state law deny-

jng+to women the right to practice. law, solely on grounds

of sex.. Bradwell v. State, 16 Wall. 130. The rationale’

. “underlying Art. 402: of the Louisiana Code is the same .

ee we

a

as

as that which was articulated by. Justice Bradley: in

Bradwell:

“Man ‘is, or should be, woman’s protector sia de-

' - fender. The natural and proper timidity and deli-.—

cacy, which belongs to the female sex evidently

‘unfits it for many of the occupations of civil life.

_ The constitution of thé family organization, which

is founded~in the divine ordinance, as well as in

the nature of things, indicates the domestic sphere

as that whick properly belongs to the domain and .

’ functions of womanhood. ‘The harmony, not to say

identity,’ of interests and views which belong, or

. should belong, to the family institution*is repug-

nant to the idea of a woman adopting a distinct

and -independent career from that. of her. hus-

- band. . 5.

" ) .. The paramount destiny and mission . of

. woman are to fulfil the noble and benign offices

of wife and mother. This js the law of the Creator.

And the rules of civil' society must be adapted to

the general constitution of things, and cannot be

based upon exceptional cases.” Jd., af:141-142.

v. Crook, 251 F. Supp. 401 (MD Alg..1966). . Most States affrd

: equal treatment to men and women, although exemptions are fre-

quently provided for women who are pregnant or who hav children

‘under 18 at home. Five States now allow women an absolyte exemp-

tion, based solely on their sex, but they must affirmatively request

it. Ga. Code Ann. -§ 59-124 (1965); Mo. Const., Art. I, § 22 (b);

N. Y. Judiciary Law § 507 (7) (1968) ; R. I-Gen. Laws Ann. § 9-9-

11 (1970); Tenn. Code Ann. § 22-101, § 22-108 —

. * hi y

ALEXANDER v. LOUISIANA. G41.”

625 < .-. Dovatas, J., concurring — |

Classifications based on sex are no longer insulated

from judicial scrutiny by a legislative judgment that |

“woman’s place is in the heme,” or that woman is by »

her “nature” ill-suited for a particular task: “See, e. g.,

Reed Vv. Reed, 404 U. S. 71. But. such a judgment is

precisely that which ‘underpins the absolute exemption

from jury service at issue.® Insofar as Hoyt, supra,

* Perhaps the purest articulation of the objection to woman jury:

‘ service is that of Judge Turner, dissenting in Rosencrantz v. Terri-

tory, 2 Wash. Ter. 267, 5 P. 305 (1884); a case in which a female

defendant challenged the grand jury which indicted her on the

ground that it included married: women living with their husbands. .

The challenge was rejected over Judge Turner's dissent:

“It is said that the rights of the weaker sex, if I'may now call them

"so, are more regarded than in the days of Blackstone; and that: the

theory. of that day, that women were unfitted by physical con-

stitution and mental characteristics to assume and perform the civil

- and political duties and obligations of citizenship, has been exploded Q>

by’ the advanced ideas ‘of the nineteenth century.: This may be true.

No man honors the. sex more than I. None has witnessed more

cheerfully the improvement in the laws of the States, and particularly,

_in the laws of this Teérritory, whereby @any of the disabilities of

that day are removed from them, and their just personal and property.

rights put upon an equal fodting with those of men. I cannot

say, however, that I wish to see them perform the duties of jurors.

rappeape fied graph sida ec om 5 tenth |

the case of woman, it is not necessary that she should 4 :

obligation to secure or maintain her rights. If it were I should . -

stifle all expression of the repugnance that I feel at seeing her intro-

duced into associations and expesed to influences which, however

others regard it, must,'in my opinion, shock blunt those fine ©

sensibilities, the possession of which is her chiefest ic] charm, and -

- the protection of which, under the religion and laws of all countries,

civilized or semi-civilized, is her most sacred right. . - 7

“If one woman is competent as a juror, all women having the

same qualifications are competent. ‘If women may try one case, they

may try all cases. It is -unnecessary to say more, to suggest the

Shocking possibilities to which’ our wiyes, mothers, sisters,. and

™~ ~

et

or,

. N. ¥. U, L, Rev. 675, 708-721 (1971).

OCTOBER TERM, 1971 -

A yo

Dovaas, J., concurring s. 405 U. Ss.

\

‘initia this discredited stereotype, it’ should be firmly

disapproved.”° See Johnston & Knapp, Sex Discrimina+..

tion. by Law: A Study in Judicial Perspeetive, 46

ue

Seiaiehinn may be exposed . These <incmdbiiie. however, are

not pertinent here. The quéstion is, What is the law? ;

“T say, that the laws now concerning the impertant incidents of a

_jury trial are, by. express constitutional provision, what they were

at the common law, and that under that law a jury. was no jury _

unless it was composed of men.” Jd., at 278-279, 5 P., at 309-310.

10 In Fay v. New York, 332 U.S, 261, there is also a dictym approv-

. ing the constitutionality of excluding sail from jury service. Re-

’ . lying solely on the proposition that: “Until: fecently, and for nearly

a half-century after the Fourteenth Amendment was adopted, it was

universal practicé in the United States to allow only men to sit on

juries,” the Court opined that “woman jury service has ‘not so be-

come a part of the textual or customary law of the land that one:

convicted of crime must be set free by this Court if his state has

lagged behind what we personally may regard as the mésat ‘desirable

‘practice in recognizing the rights and obligations of womanhood.”

Id., at 289-290. This dictum was totally irrelevant to the ‘holding -

-in Fay, approving New York’s special “blue-ribbon” jury system, for

‘the Court stated flatly that: “The evidence does not show that women

are excluded from the: special jury:” Jd., at 278. Indeed, there _

- weré-Women on the very jury which was at issue in the ease. Ibid.,

The “nose-counting” approach which led to ‘the Fay Court’s re-

fusal to recognize woman jury service as-“part of the textual or

customary law of the land” has, of course, been thoroughly under-

mined by subsequent events. -See n. 8, supra. It has been sug-

. gested that the decision itself was overruled by Duncan v. CERT,

391 U.S. 145. Id, at 185 n. 25, and text following (Harlan, J.,

dissenting). And mat little there may be :left- after Duncan, is,

like Strauder v. West Virginia, 100 U. 8. 303, and Hoyt v. Florida,

368 U.:S. 57, based on-an obsolete view of woman’s role which

-, does not square with reality. “[The Fay] — ... calls to

mind—in its total reliance on historical practice

sex discrimination—the . . . observation . . . that.-attitudes can

be more formidable than arguments.” Johnston & Knapp, Sex

9:

justification for |

_ Louisiana says, however, that women are not totally,

"excluded from service; they may volunteer. The State

asserts it is impractical ‘to require women affirmatively

_ to claim the statutory exemption -because<df the: large

| numbers who .would do so. This argument misses the

_-point., Neither man nor woman can be expected to

volunteer for jury service. Hoyt, supra, at 64-65. See

L. Kanowitz, Women and the Law 30 (1969). -Thus, the

automatic exemption, coupled with the failure even to

apprise parish women of their right to volunteer, results.

in as total an exclusion as would obtain if women were

_ hot permitted to serve at all. - ,

' + Sonte violations of due process of law may be excused

in the context of a criminal trial, if the error cannot be

. Shown to have had an effect on the outcome. See, e.g.

|" Giglio,v. United States, ante, p. 150; Napue-v. Illinois, ..-

360 U S. 264, 272. But the right to a°tepresentative

.., Jury is one‘which would be trivialized were a similar

requirement imposed: - LA ste “ea etar Se

“ “We can never measure accurately. the prejudice:

that results from the exclusion of certain types of

' qualified people from a jury panel. Such preju-

dice is so subtle, so intangible, that it escapes the

ordinary methods of proof. It may be absent in

~. One case and present in another; it may gradually —

_. and silently. erode the jury system before it. be-

- . Comes evident. But it is no less real or meaningful

for our purposes. If the constitutional. right to a

jury impartially drawn from a cross-section: of ‘the

community has been violated, we should vindicate

Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.

- U. L. Rev. 675,715 (1971). See State v. Emery, 224 N. C. 581,

601, 31 S..E. 2d 858, 871 (1944) (Seawell, J., dissenting). See also

Rosencrantz v. Territory, supra (Turner,_J., dissenting).

EC

nN le

” Dovunas, J; concurring i 4050.8,

that Tight even though the ers ‘of the vielution

has not yet put in a tangible appearance.. Other- ©

wise that right may: be irretrievably lost in a welter

of evidentiary rules.” © Fay v. New York, 332 U. S. |

261, 300 (Murphy, J., dissenting). ~~

A statutory procedure which has the effect of exited

ing all women does not produce a representative jury,

644 |. OCTOBER TERM, 1971"

and is therefore repugnant to our constitutional ‘scheme.

Cf. White v. Crook, 251 F. Supp. 401, 408-409 (MD Ala.

| 1966). For these reasons, I would hold Art. 402, La.

Code Crim. Proc., to be unconstitutional.

F

a

4

’

'

e ° ?

~ . be *

“A

Cp: 7 .

: CN "

. ars . .

' .

-

oe

ff e ,