Opinion — Peters v. Kiff

(Sip Opinion) .- |» . * ah

>

st PREME COURT: OF THE UNITED STATES

Petitioner contends in this habeas corpus proceeding that the system-_

E: Where it is deemed desirable, a syllabus (headnote) will

. be a ased, as is being done in connection with this’ case, at the time

the opinion ‘is issued. The Syllabus constitutes ‘no part of the.opinion:

of the Court but has been prepared by the Reporter-of Decisions for

the convenience of the reader. ad United ee v. Detroit Lamber

Co., ap US. 321, — 8

Sy llabus a

PETERS v. KIFF, WARDEN,

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT:

No. 71-5078. “Argited Febraaiy 22, 1972—Decided’ =, 4972.

atic exclusion of Negroes from the grand jury. that indicted ‘him

and the petit jury that convicted him deprived him, of his rights to

due process and equal protection. . The Court of Appeals affirmed

the District Court’s denial of relief on the ground that petitioner,

not being a Negro, suffered no unconstitutional discrimination.

Held. ‘*The judgment is reversed. Pp. 2 42 _,.% 3

441 F. 2d 370, reversed and remanded.

Mr. Justice MarsHALt, joined by Mr. JUSTICE Dovetas and

"Mr. Justice Stewart, concluded that:

1. Petitioner, under the circumstances of this case, he not

| abandoned his challenge to the petit jury by failing to include it

" in the list of — presented by the writ of certiorari, Fp.

~ Justice oe would implement the longstanding and strong.

i.

that’ has been selected in an arbitrary and discriminatory manner

contrary to federal constitutional and statutory requirements, and

regardless of any showing of actual bias, petitioner had standing

to attack the systematic exclusion of —— from grand Jury and

petit jury service. Pp. 3-11.

Mr° Justice WHITE, joined by Mr. JUSTICE. Bren’ NAN and Mr.

policy of. 18 U.S.C. $243 against’ excluding qualified jurors on

account of race permitting petitioner to challenge his convic-

tion on the ground that Negroes were arbitrarily excluded from the

grand jury: that indicted him. Hill.'v. Texas, 316 U. S. 400. Pp.

1-2.

I |

A State cannot, consistent with’ due process, subject. a de- 7

* fendant to indictment by a grand jury or trial by a-petit jury.

a

cm "PETERS: v. KIFF —

‘Syllabus

: ~ . - & - , . ‘

MarsHaLt, J., announced the Court’s judgment and delivered an

opinion, ‘in¢which Dovctas and Srewarr, JJ., joined. “Wurre, J,

filéd an opinion concurring in the judgment, in which BRENN AN and

Powe, JJ., joined. Burcer, C. J., filed’a dissenting opinion, in

which ‘BiackMUN and t RemNquier, I. joined.

ee ee ae cence se tee 9

. NOTICE: This a is. saniaee to formal revision before publication

in the preliminary. print of the United States Reports. Readers are re

quested, to notify the Reporter of Decisions,- Supreme Court of the

United States, Washington, D.C. 20543, of any typogra hical.or other

formal errors, in order that corrections may ‘be made before the pre-

: liminary print goes to press.

SUPREME COURT OF THE UNITED STATES -

NS, 71-5078 ._ 7. & es

4

On Writ of Cortiorari to

Dean Rene Peters, Petitioner,

the United States Court

v.

C. P. Kiff, Warden. Circuit.

* [June 22, 1972) |

>

_« NMR. Jus STICE MARSHALL aanguned the judgment; of

the Court and an opinion in-which MR. Je USTICE Dovetas

and Mgetu STICE STEWART join. ;

Petitioner alleges that Negroes were systematically ex- «.

‘cluded from the grand jury that indicted him and the

petit jury that convicted him of burglary in the Superior

_ Court of Muscogee County, Georgia. In consequence he

contends that his conviction is invalid under the Due

Process.and Equal Protection. Clauses of the Fourteenth

Amendment. Because he is not himself’a Negro, the

_ State contends that he has not suffered any unconstitu-

~ tional discrimination, and that his conviction must stand..

On that ground, the Court of Appeals affirmed the denial .

of his petition. for federal habeas corpus. 441 F. oe 371

(CA5 1971)" We granted certtorari. 404 U..S. 964

(1971). We reverse. “e

! The hetory of “this fitheation is “long and complicated. Peti-

tioner was indicted on June 6, 1966.: His first trial resulted in a’ .

conviction which was reversed on Fourth Amendment grounds, 114

Ga: App. 595 (1966). A second trial, held.on December 8, 1966,

resulted in the conviction challenged here, which was affirmed, 115

Ga. App. 743 (1967). Petitioner for the ‘first time raised the claim

of discriminatory jury selection in a petition for federal habeas -

~ corpus, which was summarily denied on July 5, 1967. The Court df

_Appeals affirmed-on the ground that petitioner had failed to exhaust

then-available state remedies with respect to.his otherwise highly col-

of Appeals for the Fifth »

es » = . ee > danphaane re ill Po Ree n “

gg 2 el NE ORS AN AREAS HAIDA EAR ORI IS EG IOS RE, OLE EERE AL NEE OE CNR SAD co Feit, Aone a

=

en Sr ‘” PETERS v, KIFF

. A

At the outset, we reject the contention that the only

issue before this Court is petitioner’s challenge to the

; composition of the grand jury that indicted him. The

State argues that the challenge to the petit jury is not be-

fore us, because it fails to appear. in the list of questions"

presented by the .petition for certiorari. We do,not regard

that omission’ as controlling, however, in light,-of the

fact that the two, claims have been treated together at_.

every. stage of: the proceedings. below, they are treated

together in the body of the petition for certiorari, and

~ they, are treated together in the brief filed by petitioner _

on the merits in this Court. Petitioner cannot. fairly be -_

said to have abandoned his challenge to the petit jury,

and the State has had ample opportunity ‘to respond to

that challenge, having done so at length below.

Moreover, in this case thé principles governing the two

claims are identical. First, it appears that the same

selection process was Used for both the grand jury and

-: thé -petit jury.’ Consequently, the question whether

orable claim, 397 F. 2d 731, 735-741 (CA5-: 1968). Petitioner then

. ' filed a second petition for federal habeas corpus on the same ground

_ alleging that intervening state court decisions: cle arly foreclosed his -

claim in the sfate courts. Th: at petition was denied on the ground:

(1) that it was repetitious. (2) that petitioner had failed To exhaust

and (3) that his claims were lacking in merit. App.‘15.- The Court

of Appeals again affirmed, rejecting the first two grounds: and restirg

_entirely on the third, i. €., rejecting petitioner’s substantive claims.

441 F. 2d 370 (1971). The exhaustion point thus having been re-

solved in petitioner's favor below, the State quite properly does ‘not

press it here. __

“See Brief of Appellee in Court of Appeals, at o8-43,

3 The jury lists were made up from the tax digests, which were

by law segregated according to race; moreover, the jury lists con-

: jained a proportion of Negroes much smaller than the proportion in

Efe population or in the tax digests. “The jury selection system of

~" Muscogee County, “Georgia, was explored in detail and struck down as

e © : .

»

PETERS v. KIFF 8

= jurors were in fact excluded on. the batts of race will be

answered the same way for both tribunals. Second, both.

"the, grand jury and the petit jury in this case must be

‘measured solely by the general Fourteenth Amendment

_guarantees of due process and equal protection, and not

by the specific constitutional provisions for the grand.

jury and the petit jury. For the Fifth Amendment right. a

to a grand jury does not apply in a state prosecution. se aes

Hurtado v. California, 110 U.-S., 516 (1884). And the.

Sixth Amendment right to:a petit jury, made applicable == = %

to the States thréugh the Due Process Clause of the

"Fourteenth Amendment in Duncan v. Louisiana, 391 U.S.

145 (1968), does not apply to state trials that took place

before the decision in Dunean, as petitioner’s trial did. * —- s,

_ De Stefano v. Woods, 392 U. S. 631 (1968). Accordingly, |

we turn now to the commands of equal protection, and

of due process. | ;

| 8 OS

oN

It

- This Court has never before considered a white de-

fendant’s haienee to the. exclusion of. Negroes: from

jury service. The essence of. petitioner's claim is this:

unconstitutional in Vosilecwierd v. Rutledge, 369 F. 2d 584 ¢C A5

. 1966), contemporaneous with petitioner’s trial.. On petitioner’s first

| ° - federal appeal, the Court: of Appeals suggested, though it did not.

hold, that the Vanleeward findings and coriclusions on this point

should be regarded as conclusive with respect-to Peters, and thereby

a expense and delay of a full evidentiary hearing might | be avoided,

7 F.2d. at 740. .

‘A number oa state courts and lower foleenl courts have ‘angased

a “same-class * tule on chalfenges to discriminatory jury selection,

holding that the exclusion of a class from jury service is. subject to

challenge only by-a member of the excluded class. Only a few courts |

have rejected the rule; e. g., Allen ¥. State, 110 Ga: App. 56 (1964)

(not followed by other panels of same‘court); State v. Madison, .

240° Md. 265, 213 A. 2d 880 (1965). The cases are collected, and

" ¢fiticized, in Note, The Defendant’s Challenge to a Racial Criterion

in Jury Sciection, 74 Yale L. J. 919 (1965). See also Note, -The

x

4 °° PETERS ». KIFF «ss

that the tribunals which indicted and convicted him were

| . constituted in a manner that is prohibited by the Con-:

stitution and by statute; that the’ impact of that: error >;

on any individual trial is unascertainable; and that con-

~ sequently. any indictment-or. conviction resurned.by-such

. tribunals must be set aside,> —

_There can. be no doubt that, if petitioner’ s allegations

are true, both tribunals involved in this case were illegally

| - constituted: “He alleges that Negroes weré systematically 2

excluded: from both ‘the grand jury and the petit jury.

This*Court—has_ repeatedly held that. the’ Constitution

prohibits such selection practices, with respect to. the

grand jury, the petit jury,’ or both.* Moreover, Con- »

‘ gress has made it a crime for a public official to ‘exclude

anyone from a grand ‘or petit jury on the basis 6f race, .-

18 U.S. C. § 243, and this Court upheld the ‘statute, ap-

. Congress, The Cont and Jury Selection, 52 Va. L. ee 1069 ( 1966).

This Court avoided passing on the ‘ ‘same-class” rule in Fay v, New |

York, 332 U.S. 261, 289-290 (1947), and has riever since then ap-

sproved or rejected it.

5 He also claims his: own rights under the Equal Protection C lanie

_ have been violated, a claim we = not: consider in light of our -

_ disposition... .

6 Alerander vy. Eounans: 405 U: Ss. “625 (1972) : arects v. North

- Carolina, 376-U.S-773 1964) ; Eubanks v. Louisiana, 356 U.S. -

’ 584 (1958) ; Reece v. Georgia, 350 U.S. 85 (1955) ; Cassell v. Texas,

839 U.S. 282 (1950); Hill v..Tezas, 316 U.S. 400 (1942) ; Smith v.

_. Tezas, 311-€. S. 128 (1949) ;- Pierre v. Louisiana, 306 U. S. 354

- (1939); Rogers v. Alabama, 192 U. S. 226 (1904); Carter.v. Tezas,. °

177 U.S. 442 (1900); Bush v. Keatucky, 107 U.S. 110 (1882).

_ 7 Avery v. Georgia, 345 U. S. 559° (1953) ;’ Hollins v. ‘Oklahoma,

295 U.S. 394 (1935).

* Sims v. Georgia, 389 U. S. 404 (1967); Jones v. Georgra, 389

U.S. 24 (1967); Whitus v. Gua U.S. 545 (1967) ; Coleman

v.. Alabama, 377 U. S. 129 (1964) ;- Patton v. Mississippi, 332 U, S.

\, 463 (1947) ; Hale v. Kentucky, 303.U. S.: 613° (1938); Norris v.

' Alabema, 294 U. S. 587 (1935); Martin v. Texas, 200 U..S. 316°

(1906); Neal v. Delaware, .103 U. S. 370 (1880) ; | Strander v. Gudea

Virginia, 100 U.S. 303 (1879). © .

oe

PETERS v.KIFF - = ——-——s«OSS

proving the. congressional determination that such ex-

clusion’ would violate the express prohibitions of the -

Equal Pratection Clause. Ex parte Virginia, 100 U.S.

- 339 (1879). .The crime, and the unconstitutional state

tion, oceur whether the defendant is white or Negro,

whether he is aeqUitted-or-eonvicted. In shorf; when a —

grand .or petit jury has been selectéd on an impermissible

-basis, the existence of a’ constitutional violation does not’

depend on the circumstances ‘of the tase spares the

claim.

It is a ceele: question, however, whether petitioner :

is ‘entitled to the relief. he seeks on the basis of that con-

stitutional violation.. The State argues that.-even if

the grand and petit jury were unconstitutionally selected,

«'tioner is not entitled: to relief on that account be-

‘use he has not: shown how he was harmed by the error.

it is argued that a Negro defendant’s right to challenge

_ the exclusion of Negroes from jury service rests on a ‘pre-

sumption that a-jury so constituted will be prejudiced -

against him; that no such presumption is avajlable to.a—

- white defendagt: and .consequently that~a white de-

. fendant must. Liroduse affirmative evidence of actual:

* harm in order’ to establish a. basis for, relief.

That argument takes too narrow a view of. the kinds ©

of harm’ that flow: from discrimination in’ jury selection.

The exclusign of Negroes. from jury service, like the arbi-

trary exclusion of any other well- defined class of citizens, re

offends a number of related constitutional values..

-In Strauder v. West Virginia, 100 U. S. 303, 308-309

(1879), this Court considered the question from the point

of view of the Negro defendant’s right to equal protection

of the laws. Strauder was part of a landmark trilogy of |

cases, in which this Court first dealt with the’ problem: of

racial discrimination in jury selection. In Strauder itself,

‘a Negro:defendant sought to remove his criminal trial to”

the federal. courts, pursuant to statute, on the ground

6... - PETERS v. KIFF

‘that Negroes were excluded by law from. the grand and

'.- petit juries in the state courts; the -Court upheld his

claim. In. Virginia v. Rives, 100 U. S. 313 (1879), a

- Negro- defendant sought renioval on .the ground that,

there were in. fact. no Negroes in the veniré from which

his jury was drawn; the Court held t

his claim did not come within thé

, without more,

Seiain terms of the

- removal statute. Finally, in Ex parte Virginia, 100 U.S. .

~ 339 (1879), a state judge challenged the statute under

. which he was convicted for the federal crime of excluding .

Negroes from state gr gratid and petit juries; the. -Court °

upheld the statute as a valid means of enforcing the

Equal Protection Clause. Because each of these three

cases was amenable to decision on the narrow basis of

an. atialysis of the Negro defendant’s right to equal pro-

tection, the Court brought all three under that single

analytical umbrella.

| But even in: 1879 the Court anlatined that other con-

| stitutional values .were implicated. In Strauder, the.

Court observed that the exclusion of Negroes from. jury

service injures not only defendants, but also other mem-

bers of the-excluded class: it denies the class of potential

jurors the “privilege of participating equally . . . in the

administration of justice,” 100 U. S., at 308, and it stig-

_matizes the whole class, even those who do not wish to —

participate, by declaring them unfit for jury service and.

thereby putting “a brand upon them, affixed by law, an

»

assertion of their .inferiority.” Jbid.. It is now clear

that injunctive relief is available to vindicate these in-

: terests of the excluded jurors and-the stigmatized class. —

Carter v. Jury Comm'n of Greene | nty, 396 U. S. 320

(1970); Turner v. Fouche, 396 US. 346 (1970) ; White

v. Crook, 251-F. Supp. 401 (MD ‘Ala. 1966).

Moreover, ‘the Court has also r ed that the ex- -

clusion of a discernible class from j jury service: injures not \

only those. defendants who belong to the excluded class, ;

s°. PETERS v. KIFF pa eae

but. other defendants as well; ‘in that it deaths the

possibility that. the jury will reflect, a a representative

——— of the community. In Williams v. Florida, .

399 U.S. 78 (1970), we sought to delineate : some of the

essential features of the jury that i is guaranteed, in cer-

_ tain.cireumstances, by the Sixth Amendment, We con-

cluded that’ it’ comprehends, inter alia, “a fair possibility °

for obtaining a representative cross-section: of the com-

' munity.’ 399 U.S., at 100.°- Thus if the Sixth Amend-

“ment were’. applicable here, and petitioner were chal- .

lenging a post- -Duncan petit jury, gge. would clearly. have

standing td. challenge the x sateeneee exclusion of ‘any

identifiable group from jury service.) 2%

The. precise question in this case, ae is whether a’

State may: subject a defendant to indictment. and trial

by grand and petit juries that are plainly illegal in their

°The princi | ‘of the representative jury was first articulated by

this Court’ as a requirement of equal protection, in cases vindicating

- the right of a Negro defendant to challenge the systematic exclusion

- of Negroes from. his grand and petit jury. £. g., ‘Smith v. Tezas, —

_ 311: U. S. 128, 130° (1940). Subsequently, in the exercise ‘of its

‘supervisory power over federal courts, this Court extended -the .

“principle, to permit any defendant to challenge the arbitrary exclu-

sion from jury serv icesof - own or any other class. £E. g-, Glasser .

v. United States, 315 U. S. 60, 83-87 . (1942) ; Thiel -v. Southern

Pacific Co., 328 U: 8. 217, 390 (1946) ; Ballard v. ‘United States, 329

U.S. 187 (1946). Finally it emerged as an aspect of the constitu-

tional. right to jury trial in Wiliams. v. Florida; 399 U. S. 78, 100 | ;

(1970).

Tt is of course a separate question whether his tialienge would .

prevail, 7. e., whether the exclusion might be found to have sufficient

justifiation.. See Rawlins v. Georgia, 201 U.S. 638, 640 (1906),

' holding that a State may exclude certain occupational . catego

from, jury service “on the bona fide ground that it [is] for the.

good of the community that their regular work should not be inter-

rupted.” We have no occasion here to consider what interests might

justify: an exclusion, or what standatd should be applied, since the -

only question in this case is not the validity of an exclusion but

—_ standing to challenge it.

~

cree ay PETERS KIFF 7”.

prea ey Sind leave the defendant ‘without recourse |

‘on the ground that he had in-any event no right toa |

grand or petit jury at all. We conclude, for teasons —

which follow, that to. do | £0 denies accag defendant due —

_ process of law.

: An

“A fair triad in a fair ‘tinned i is a-basic requirement. of

due process,” In re Murchison, 349 U. 8. 133, 136. -

(1955). The due process right to a competent and-im: ~

~ partial tribunal is qujte separate from thé right to any

partitular form of pfoceeding. Due process requires a

competent and impartial tribunal in. administrative hear-

ings, Goldberg v..Kplly,.397-U. S. 254, 371 (1970), and’

in trials to a jnidge, Tumey Vv. Ohio, 273 U. S. 510 (1927). ;

Similarly, ifca State chooses, quite apart from constitu. 9

tional sitet) to use a grand or petit jury, due”.

process: impogte limitations on the a of that /

jury. )

Long before this Court held that the Constitution

"imposes the requirement of jury trial-on the States, it

was well established. that the Due’ Process Clause _pro- :

. tects a defendant from jurors who are actually incapable

of rendering an impartial verdict, based on the evidence

and the law. Thus.a defendant cannot, consistent with

due process, be subjected to trial-by an insane juror,

Jordan v.” Massachusetts, 225 U. S. 167, 176° (1912), by

jurors who are. intiniédated by the threat of mob ‘ violence,

Moore v: Dempsey, 261 U. S. 86 (1923), or by jurors who

_ have. formed a fixed opinion about the case from news- .

paper “publicity,, Irvin v: Dowd, 366 U. S. -717 (1961).”

._Moreover, even if there is no showing -of actual -bias

in the tribunal, this Court has held. that due’ process ..

is denied by: circumstances that- create the likelihood or —

the appearance of bias’ This rule, teo, was well estab-

lished long before the right: to jury trial was made appli-

cable in state trials; and does not. depend on it. - Thus

~

-

PETERS ». KIFF | aie 9

it’ his been inwoliea’ in trials to a ‘Vila. e. g.; Tumey v.

Ohio, 273 U. S.510 (1987); In re Murchison, 249 U: S.

133 (1955); Mayberry v. Pennsylvania, 400 U. S. 455.

(1971 ); and in pre-Duncan state jury trials, e.g., Turner |

- ¥, Louisiana, 379 U. S. 466 (1965) ; «Estes v. Texas, 381°

U. 8. 532,°550 (1965). In Tuméy v. Ohio,” supra,’ this

“Court: ‘held that a judge could not, consistent with dye -

process, try’ a case when. he hada financial -stake in

the’ outeome, notwithstanding .the possibility that he

might resist the’ temptation to be influenced by that

interest. And in Turner Ve Louisiana, supra, the.Couyt™ :

. held that a jury could not, consistent with due process, try

" wease after they had been placed in the protective cystody

| of the principal: prosecution witnesses, notwithstanding ;

~ the possibility that they might not be influenced by the |

association. ‘As this Court said -in Jn re Murchison,

supra, “[f}airness of course requires: an absence of actual

_ bias in the trial of ‘cases. But our system of law has

always endeavored to’ prevent ‘even the probability of .

unfairness.” 349 U.S., at 136.

, These principles: compel the conclusion that a State

_ cannot, consistent with due process, subject a defendant

to indictment or trial by a jury. that has been selected .

in an arbitrary and discriminatory manner, in ‘viola-

tion of the Constitution and laws.of the United States.

_ ‘Iilegal. and ‘unconstitutional jury selection procedures ’

‘cast doubt on the integrity of ‘the whole judicial process..

*They create the’ appearance ‘of bias in the decision of

individual cases,’ and they: increase- the risk of ‘actifal

bias as well. pe |

Tf it-were possible to say with confidence that the ah “

‘tisk of bias resulting from the arbitrary action inv ‘olv se

here were confined to cases inv olving eee: defendants,’

2s

Or the cldiss may ‘be muted slightly to ‘eiclinde white hil.

Nights workers; see Allen v.- State, 110 Ga. App. 56, 62 (1984) ”

(alternative —

1-5) COS * > PEreRs » EDF *

‘then perhaps the right to challenge the tribunal on

‘that ground could be similarly confined. The case of

the white defendant might then be thought to present

a species-of harmless. error.

‘ But the exclusion’ from. jury serviee of a substan- ¢

tial. and identifiable class of citizens has a potential

impactthat is too subtle and too pervasive to admit of.

confinement to particular issues or particular cases.

_ First, if wé assunie. that the exclusion of Negroes affects

_ the fairness of the jury only with respect ‘to .issues pre-. -

‘senting a-clear opportunity: for the operation of race .

‘prejudice, that assumption. does not provide a work-.

able guide for decision in particular cases. For the |

opportunity to appeal to race prejudice is latent. in‘a-.

st range of issues, cutting ACTOSS the entire fabric of

ou society. © “jos Te 3

. Me eover,-we are unwilling to make the assumptioa

that the exclusion of Negroes has relevance only for

issues inv ving race. When any. large and identifiable

_+ segment are community is excluded from jury serv-

ice, the effect Isto remove from the jury room: qualities

of .human nature d. varieties of /human experience,

~ the rang¢ of whichis known,and perhaps unknowable.

It is not necessary ‘to assume that the excluded group

will consistently vote ‘as a class in order to conclude,

_ as we do, that their exclusion. de ives the jury of a

perspective on human events that may Tax unsuspected

a in any case that’ may be presente -

o 3

fox In rejecting, for the federal courts, the @xc lusion of women from. *

jury service, this Court made the following observations, which are

equally, relevant to the exclusion of other discernible groups’

- “The: truth is that the two sexes are not fungible; a community

made up exelusiv ely of one is different from 4 community ‘composed

of both;*the subtie ‘interplay of influence’one on the other is among .

the: imponderables: To insulate the couftroom from either my not —

in a give en case make an iota of difference. Yet a flavor, a distinct

.

/*

“6

“5. 5 <a ere ns sete —— = _ — -_

e x

.

ie : ‘

¢ %

aS _.: PETERS v. KIFF | 74

Vane . . . :

It ts m thé nature of the practices here «challenged

‘that: proof\of actual harm, or:lack of harm,js virtually

; impossible ta adduce. For there is no.way W determine °

ld have been selected under a_constitu-

lection system, or how that jury. would

what jury w

tionally. valid

_ have decided the case. Consequently it is necéssary —

- to decide on’ principle which side shall suffer. the con-

sequences: of unavoidable uncertainty. See Speiser v.

Randall, 357 U. S. 513, 535-536 (1958); In re Winship; -

397 _U. S. 358, 370-373 (1970) (concurring opinion of ©.

Mr. Justice ‘Harlan). In light of the great potential

‘for harm latent in an unconstitutional jury selection

system,” and the. strgng interest of the criminal defend-

ant iff’avoiding that harm, any doubt should be resolv ed -

in favor of giving the opportunity for challenging the

jury to too many defendants, rather than giving it to

‘too few.

Accordingly, we hold that; whatever his race, a criminal

defendant has standing to challenge the system used to

select his -grand or petit: jury, on the ground that it

arbitrarily excludes from service the members - of any

race, and thereby denies him due process of: law. This °

certainly is*true in this case, where the claim is that

Negroes were: sy stematically exeluded from jury service.

For Congress ‘has made such exclusion a -crime. 18

U; S. C. § 243. — |

—_

IV . ;

m ‘

‘Hees resolved the question of. standing, we turn’.

briefly to, the . further disposition of this case. There’

is of course no question here ,of justifying the system

.. under attack. For. whatever may be the law with re-

gard to other exclusions from jury service, it is clear

"quality is lost if either ex Lis “excluded.” Ballard v. U nited States,’

+ * $99 IJ. 8. 187, 193-194 (1046) (footnote omitted).

13 Bias Vv. Texas, 316 U. S. 400, 406 (1942).

*

. i.* * _ PETERS v. KIFF

beyond all doubt that the exclusion of Negroes cannot

pass constitutional muster. Accordingly, if petitioner's.

allegations are corv-ect, and Negroes were systematically.

_ excluded from his grand and petit juries, then he was

indicted and convicted by tribunals that fail.to satisfy

the elementary requirements of due process, and neither

_. the indictment: nor the convictidn can stand. Since .

he was precluded from proving the facts alleged in sup-

port of his claim, the: judgment must be reversed. and

the case remanded for further proceedings consistent _

with this opinion. | ;

. SUPREME COURT OF THE UNITED STATES

No: 71-5078 ase ay

Dean Rene Peters, Petitioner, On Writ of Certiorari to

be the United States Court

Cc. P Kiff, Warden. of Appeals for. the Fifth

- Greunt.

“Tune 22, 1972]

Aq - —_ . .

Mr. Justice WHITE, with whom Mr: Justice BREN-

NaN and Mr. Justice Powe. join, concurring. in the

judgment. a |

Sinee March 1, 1875, the criminal laws of the United

States -have contained a a proscription to the following

~ effect: Sos a

“No citizen possessing all other qualifications which —

are or may be prescribed by law shall be disqualified

. for service as grand_or_petit juror in any.court of

the United States, or of any State on account of

raee, color; or previous-condition of servitude; . . .”

‘By this unambiguous provision, now contained in 18 .

U.S. C. § 248, Congress put cases involving exclusions

from jury service on grounds of race “in a class by them-

‘selves . . . for us the majestic generalities of. the Four-

~ teenth Amendment are thus reduced to a concrete stat-

utery command when | cases involve race or color which —

‘is wanting in every other case of alleged discrimination.”

Fay v. New York, 332 U. S: 261, (282-283 (1947).

The consequence is that where jury commissioners dis-

qualify citizens on the grounds of race, they fail “to

perform their constitutional’ duty . ". Fecognized by a .

.- of the Civil Rights Act:of March 1, 1875 . . and fully ©

' established’ since the decision. in 1881 of. NV eal’ v. Dela-

". ware . . . not to pursue a course of conduct-in the

administration of their office which would operate to

discriminate i in the seleetion of jurors on racial grounds. -—

.

2: \+ . PETERS v. KIFF

Hill v. Teras, 316 U. S. 400, 404 (1942). Thus, “ne

State is at liberty to impose upon one charged “with

a crime a discrimination in its.,tgial procedure which the

Constitution, .and an act. of Congréss passed pursuant

to the Constitution, alike forbid... .-it is our duty as

~ well as the State’s to see to, it that throughout the pro- .

cedure. for ‘bringing him to justi¢e he shall enjoy the

| protection which the Constitution guarantees. Where, —

as in. this case, timely objection has laid bare a discrim-_

inatjon-in the selection. of grand jurors, the conviction

cannot -stand, because the Constitution forbids the pro-.

-cedure by which it was obtained.” /d., at 406.

It is true that the defendant in Hill was a Negro and

- petitioner hére is a white man. _ It is also true that there |

“is no case in, this Court setting aside. a conviction for

arbitrary exclusions of a class of citizens from jury serv-

‘ice where the defendant was not.a member of the ex-

cluded class. I also recognize that, as in this case, the

courts of appeal, reflecting the generally aceepted con-

stitutienal view, have rejected claims such as petitioner

presents here. For me, however, the rationale and

operative language of Hill v. Texas suggests a broader

‘sweep;: and I would implement the strong’ statutory

policy of § 243, which reflects the ‘central concern of

the Pourtecath Amendment with racial discrimination,

by permitting petitioner to challenge his conviction: on

the grounds that Negroes were arbitrarily excluded .from.

the grand jury that indicted him. This is the better

view, and it is: time that we now recognized it in this

case and as the standard governing criminal proceedings

” instituted hereafter. "Hence, I join. the judgment of

_ » the Court. a!

a

oe bezecem QR SE ees

| SUPREME COURT OF THE UNITED STATES

No. 71-5078

— : ee 1 On Writ of Certiorari to

D Rene Peters, Petitioner, ans nial

(= ene S co : ° | the United States Court

a | of Appeals for the Fifth ©

C. P. Kiff, Warden. | Circuit .

[June 22, , 1972)

Me. CHIEF Justice Burcer, with whom Mr. iucece 7

BLACKMUN and-Mr. Justice REHNQUIST join, dissenting?

There is no longer any question, of course, that per-

* sons may not: be excluded from juries on account of

race. Such exclusions are’ plainly unlawful and de-

serving of condemnation. © That, ‘however, is not the

issue before us. The real issue is whether such illegality

necessarily voids a criminal conviction absent any dem-

onstration of prejudice, or basis for presuming prejudice,

to the accused. 7

Petitioner was indicted for the offerise of burglary

on June 6, 1966, and thereafter -convicted. The convic-

tion. was reversed on direct appeal, and the case was re-

mahded for’a new trial. Petitioner was retried on De-

- cember 8, 1966, was found guilty and was sentenced to

10 years’ imprisonment. Petitioner.is not a Negro and

the record’ in no way suggests that race was releyant in

the proceedings against him. At trial petitioner made no

challenge to the method of selection of the grand and petit

juries, and he made no challenge to the array of the petit

jury. In his appeal to the Court of Appeals of Georgia,

petitioner still made no.claim addressed to the method

_ ‘of selection of the grand and petit juries. His conviction

was affirmed.

Seven months after’ his trial, petiboue filed a. writ

_ of habeas corpus in the United States District Court,

20 | PETERS v. KIFFo

asserting for the first time that. Negroes were. system:

-atically excluded from the grand .and petit juries: . If

petitioner’s allegations are true, then the officials re-

sponsible for the jury selection acted in violation of the

_ Constitution, denying potential Negro jurors the equal

opportunity to participate in the administration of jus- -

tice. “Strauder: v. West Virginia, 100 U. S. 303, 308

(1879). Moreover, if. petitioner’s allegations are true, °

the responsible officials are subject to criminal penalties.

18 U. S: C. §243.. However, in order for petitioner’s

conviction to be set aside, it is \not enough to show

merely that there has been some unconstitutional or un-. -

lawful action at the trial level. It must be established

that petitioner’s conviction has resulted from the denial

of federally secured rights properly asserted by him.

Seé Alderman v. United States, 394 U. S. 165, 171-174

(1969); ef. Jones v. United States, 362 U. S. 256, 261

(1980). |

_ The opinions in support of the majority position do -

not hold that. if petitioner’s allegations are true, he has

been denied. the equal protection of the laws. The

Court has held in a long line of- cases that‘ a Negro

defendant is denied equal protection by the systematic -

exclusion of Negroes from jury service. See, €. g.,

| Whitus v. Georgia, 385 U. S. 545 (1967); Avery v:

Georgia, 345 U. S. 559 (1953); Norris v. Alabama, 294.

U. S. 587 (1935); Carter v. Texas, 177 U.S. 442 (1900); .

Strauder v. West Virginia, 100 U. S. 303 (1879). ‘These’

_ deéisions: have been predicated’ from: the. beginning on

- the judicially noticeable fact “that prejudices often exist —

against particular classes in the community, which sway

- the judgment of jurors, and, therefore, operate in some

_cases to deny persons of those: classes the full enjoy-

-ment.of the protection which others enjoy.” Straudér

v. West Virginia, supra, at 309. See also Gibson v.

Mississippi, 162 U. S. 565, 581 (1896) ;-Bush v. Ken-

ad

LE ARLE II CL

°

o : PETERS v. KIFF 3

tucky; 107. U. S.-110, 17 (1882) ; Neal. v. Delaware, 103

U. S. 370, 386 (1880) ; Ex parte Virgima, 100 U, S. 339,

"345 (1879). This presumption of prejudice derives from

the fact that the defendant-is a- member of thé excluded

class, but the Court has never intimated that a defend-

‘ant is the victim of unconstitutional discrimination ‘if

he does not claim that members of his own race. have

-- been’. excluded. See ‘Alexander v. Loyisiana, 405 U. Ss.

625, 633 (1972).

' While the opinion of Mr. JUSTICE Mists, refrains

from relying on the Equal Protection Clause, it concludes .

that if petitioner’s allegations are true, he has been denied. ~

‘ due’ proéess of law. The opinion seeks to equate peti-

‘tioner’s position with that of a defendant. who has been

tried before a biased tribunal or one lacking the indicia of .

impartiality. It has been held that an accused is denied |

due process if the trier of fact.is meritally incompetent,

Jordan v. Massachusetts, 225 U. S. 167 (1912), has a

personal interest in the outcome of the proceedings, »

Tumey-v. Ohio, 273 U.S. 510 (1927), has been subjected —

to pressures. making a dispassionate decision unlikely,

. Irvin v. Dowd, 366 U. S. 717'(1961), Moore v: Dempsey

261.U. S. 86 (#923), ef. Turner v. Louisiana, 379 U. S8.°

466 (1965), or has had direct “personal involvement with

the events underlying a criminal contempt charge. May-. ©

berry v. Pennsylvania, 400 U. S. 455 1971); In re

_ Murchison, 349. U.S. 133 (1955). This case plainly falls

_ in none of-those categories. :

Although the prior cases have not required a owing

‘that the trier of fact was actually affected by prejudice

- in its deliberations, in every Case the circumstances were

such as to create a serious “probability of unfairness.” .

In re Murchison, 349. U. Ss. at 136. ‘Recognizing this

limitation, the Court in W itherepoori v. Illinois, 391

U. S. 510 (1968), found no denial of. due process where

the determination of: guilt had been entrusted to a jury

\ 7 * .

i, a “PETERS v. KIFF

-from which persons ipaoees to “the: death pitialty had ©

been excluded. The Court rejected as “tentative and

7 fragmentary” scientific evidence tending to show “that® —

_ jurors not opposed to the. death penalty .tend to favor

-the prosecution in the determination of guilt.” (391

-U. S., at 517. The Court went on to state, .

“lve amply cannot conclude, either on -the basis

of the record.now befere us or as a matter. of judi-

cial notice, that the exclusion of jurors opposed to

-capital punishment results in an unrepresentative

jury on the issue of guilt or substantially increases

the risk of conviction. In light of the presently

~. available information, we are not prepared to an-

| nounce a per sé constitutional rule. requiring the

_- ‘reversal of every : conviction returned‘ by ‘a jury |

. Selected as this one was.” 391 U. S., at, 517-518:

See also Fay vy. New York, 332 U. S.-261, 980-281 (1947).

Here thrée members of the Court would establish such a

per se rule without the benefit of-tentative, fragmentary, .

or any other kind of empirical data indicating that all- |

' white juries‘ tend to be prejudiced against w hite selend-

ants in nonracial criminal proceedings.

The opinion of Mr. Justice: MarsHALi seeks to mag-

nify this wholly speculative likelihood of prejudice by *

_hoting that the effect of excluding ‘ ‘any large and identifi-

able segment of the community .. . 1s to remove from the

jury room qualities of human nature arid varieties of ©

human experience, the range of which is ‘unknown and

perhaps unknowable,” and “that their exclusion deprives. ,

the jury of a perspective on haman events that may have _

unsuspected importance in any case that may be pre-

sented.” I completely agree that j juries should not be de-

prived of the insights of the various segments ‘of the com- .

. munity, for the “common-sense judgment. of a jury,” ~

.Teferréd-to in Duncan vy. Louisiana, 391 U. S.. 145, 156 . -

PETERS », KIFF | te ke an 8 ee

(1968), is nibety enriched when all. voices can be heard.

-. But we are not here concerned with the essential at-

tributes of trial by jury. In fact, since petitioner was |

tried two years before this Court’s decision in Dunean,

-. there was no constitutional requirement that he be tried...

before a®jury at all. DeStefane v. Woods, 392 U. S.

631 (1968): Had the State of Georgia proceeded to

try petitioner before a judge, I assume the Court -would

-not-find it a denial of due process if the judge were hot the

-embodinieat of all the “qualities of human nature and —

varieties of human experience.” -I do not mean to.

mittmize the importance of these values, but they really

'. have very little to do with the narrow question whether |

_ petitioner’ was convicted by a prejudiced tribunal.

Nor do I believe -that’ the ‘illegality of the alleged’

‘exclusion. can be viewed as tipping the seales toward

finding a denial of due process. The question of 4

jury’s bias or prejudice is totally factual in nature. If

the possibility. of prejudice is too remote or speculative

to support a finding of unconstitutionality, a different

result cannot be justiffed by relying on the -element of

illegality. The constitutional and statutory- prohibition -

_ against ‘such conduct is extraneous to. the due process °

question, for it in‘no way renders the possibility. of preju-

dice less emote. or less speculatiye. If ‘this were a.

borderline case on the facts, it might conceivably be

appropriate to resolve the doubt against the State due |

to its complicity in the alleged unlawul discrimination. —

But; judging from all existing eimsticks this is not a

close case at all..

The concurring opinion of Mr. Justice Wuirr, as I

read it, rests on the statutory’ prohibition against racially

exclusive juries found'in 18 U.S. C. § 243. The opinion

draws. on dictum in Hill v. Tezas,-316 U- S. 400, 404

(1942), a case involving a Negro defendant, as express- -

ing the. “better view” that § 243 invalidates the convic--

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, tion of ‘any ma tried before a jury from wid persons Neo

‘have been. ‘excluded on account of race.*

‘A closer look at the statute is warranted. From all.

indications, § 243 was intended. to serve two purposes;

‘first, to make explicit what: was implicit in the. Four.

~ teenth Amendment; that persons cannot be denied the‘

‘ right to serve on ‘juries because of their race; and sec-

ond, to prevent racial exclusions from juries by pro-”

viding criminal penalties far persons violating the sfatu-

tory command. See Ex parte’ Virginia, 100'U.:S. 339 \°

(1879); Neal v. Delaware, 103 U. S. 370, 386 (1880).

Insofar as the statute is declarative: of rights. secured

by the Equal Protection Clause, it provides no auther-—

ity for ‘reaching a, result that the Constitution itself”

does not require. No case has‘ever held: hat. § 243 con-

fers -extra-constitutional rights on criminal defendants,

and there is no support for the view that Congress in- .

\" tended to confer such rights vance it enact this legis-

Xe lation in 1875. Ve che

\:. oThe concurring opinion suggests that expansive |

\reading of § 243 is appropriate to. “implement the strong

‘Statutory policy” against the exclusion of persons from

_ juty service on the basis of race. Under this interpreta-

tion) the statute is viewed not so much as safeguarding the:

*The \ ‘passage quoted ftom Hill v. Texas, supra, even if isin at.

g face, value) des not mandate reversal in this case. It is expressly

limited to the case where “timely objection has laid bare . discrim-

ination in the\selection of. grand jurors... .” 316 U. S., at 406.

. " As indicated. earlier; petitioner first made his allegations seven months

“rg after his trial.- 1g Moreover: assuming arguendo that‘ there is a ‘Sat-

‘* . tory right not to be tried before a racially exclusive jury, it is not

clear to me why petitioner's failure to’ raise the matter in the state.

courts should not preclude him from raising it on a federal habeas —

attack. The Court has spoken of a presumption against the waiver

| of fundamental,: constitutional rights, see, es g., Johnson v. Zerbst, *

oe 304 U. S. 458, 464 (1938), ‘hut thas never intimated that a similar ~

G "Presumption nee apply. with Fespect t to statutory rights, .

Oo

a a P v. a a D 7 .

rights of the white deletes. bik as providing’ a -prophy- e

'* Jaxis against discriminatory ‘action in all cases, regard-

gass of any harm that might befall the accused.,, While

- Congress surely had the power to implement the policies

of the Fourteénth Amendment in this manner, it chose ‘ .

instead to deter such * violations of the Fourteenth

Amendment by imposing. criminal sanctions. . It has

, been apparent, at least _until- recently, that-such sanc-

tions have not satisfactorily served:to deter. But, it

is it for this Céurt’ to correct: tha’ inadequacies ‘of: a.

_ statutory enactment. Moreover, it does nothing .to pro- .

_ mote adherence'to the policies of the Fourteenth Amend-

ment to allow a criminal deféndant who has made no |

objection at trial and who has,no credible claim of: per-

sonal pre} judice to mount a post-conviction attack alleging

that discriminatory j jury selection has taken place in the

past. ae aes to