|Castaneda v. Partida
[ Blackmun ]
[ Marshall ]
[ Burger ]
[ Stewart ]
[ Powell ]
Castaneda v. Partida
CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
The evidence relevant to the issue of discrimination in this case falls into three categories: first, the statistical evidence introduced by respondent in both the state and federal proceedings which shows that the 80% Mexican-American majority in Hidalgo County was not proportionately represented on the grand jury lists; second, the testimony of the state trial judge outlining the Texas grand jury selection system as it operated in this case; and third, the facts judicially noticed by the District Court with respect to the political [p508] dominance and control by the Mexican-American majority in Hidalgo County.
The Court today considers it dispositive that the lack of proportional representation of Mexican-Americans on the grand jury lists in this county would not have occurred if jurors were selected from the population wholly at random. But one may agree that the disproportion did not occur by chance without agreeing that it resulted from purposeful invidious discrimination. In my view, the circumstances of this unique case fully support the District Court's finding that the statistical disparity -- the basis of today's decision -- is more likely to have stemmed from neutral causes than from any intent to discriminate against Mexican-Americans. [n1]
The Court holds that a criminal defendant may demonstrate a violation of the Equal Protection Clause merely by showing that the procedure for selecting grand jurors "resulted in substantial underrepresentation of his race or of [p509] the identifiable group to which he belongs." Ante at 494. By so holding, the Court blurs the traditional constitutional distinctions between grand and petit juries, and misapplies the equal protection analysis mandated by our most recent decisions.
The Fifth Amendment right to a grand jury does not apply to a state prosecution. Hurtado v. California, 110 U.S. 516 (1884). A state defendant cannot complain if the State forgoes the institution of the grand jury and proceeds against him instead through prosecutorial information, as many States prefer to do. See Gerstein v. Pugh, 420 U.S. 103, 116-119 (1975). Nevertheless, if a State chooses to proceed by grand jury, it must proceed within the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment. Thus, in a line of cases beginning with Strauder v. West Virginia, 100 U.S. 303 (1880), this Court has held that a criminal defendant is denied equal protection of the law if, as a result of purposeful discrimination, members of his own race are excluded from jury service. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 628-629 (1972); Carter v. Jury Comm'n, 396 U.S. 320, 335-337, 339 (1970); Cassell v. Texas, 339 U.S. 282, 287 (1950); Akins v. Texas, 325 U.S. 398, 403-404 (1945). As the Court points out, this right is applicable where purposeful discrimination results only in substantial, rather than total, exclusion of members of the defendant's class, see, e.g., Turner v. Fouche, 396 U.S. 346 (1970).
But a state defendant has no right to a grand jury that reflects a fair cross-section of the community. [n2] The right [p510] to a "representative" grand jury is a federal right that derives not from the requirement of equal protection, but from the Fifth Amendment's explicit requirement of a grand jury. That right is similar to the right -- applicable to state proceedings -- to a representative petit jury under the Sixth Amendment. See Taylor v. Louisiana, 419 U.S. 522 (1975). To the extent that the Fifth and Sixth Amendments are applicable, a defendant need only show that the jury selection procedure "systematically exclude[s] distinctive groups in the community, and thereby fail[s] to be reasonably representative thereof." Id. at 538. But in a state case in which the challenge is to the grand jury, only the Fourteenth Amendment applies, and the defendant has the burden of proving a violation of the Equal Protection Clause.
Proof of discriminatory intent in such a case was explicitly mandated in our recent decisions in Washington v. Davis, 426 U.S. 229"]426 U.S. 229 (1976), and 426 U.S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). In Arlington Heights, we said:
Our decision last Term in Washington v. Davis, 426 U.S. 229 (1976), made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id. at 242. Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. . . .
Id. at 264-265. We also identified the following standards for resolving issues of discriminatory intent or purpose:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry [p511] into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another," Washington v. Davis, supra at 242 -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.
Id. at 266 (footnotes omitted).
The analysis is essentially the same where the alleged discrimination is in the selection of a state grand jury. [n3] This is [p512] illustrated by the recent decision in Alexander v. Louisiana, supra, where we stated:
This Court has never announced mathematical standards 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 possible explanatory factors. The progressive decimation 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. . . .
405 U.S. at 630. In Alexander, the evidence showed that 21% of the relevant community was Negro; the jury commission consisted of five members "all of whom were white," appointed by a white judge; the grand jury venire included 20 persons, only one of whom was a Negro (5%); and none of the 12 persons on the grand jury that indicted the defendant was Negro. Id. at 627, 628. This statistical array was -- as the Court noted -- "striking." Yet the statistics were not found, in isolation, to constitute a prima facie case. Only after determining that the selection system "provided a clear and easy opportunity [p513] for racial discrimination" was the Court satisfied that the burden should shift to the State. Id. at 630. [n4]
Considered together, Davis, Arlington Heights, and Alexander make clear that statistical evidence showing underrepresentation [p514] of a population group on the grand jury lists should be considered in light of "such [other] circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266.
In this case, the following critical facts are beyond dispute: the judge who appointed the jury commissioners and later presided over respondent's trial was Mexican-American; three of the five jury commissioners were Mexican-American; 10 of the 20 members of the grand jury array were Mexican-American; 5 of the 12 grand jurors who returned the indictment, including the foreman, were Mexican-American, [n5] and 7 of the 12 petit jurors who returned the verdict of guilt were Mexican-American. In the year in which respondent was indicted, 52.5% of the persons on the grand jury list were Mexican-American. In addition, a majority of the elected officials in Hidalgo County were Mexican-American, as were a majority of the judges. That these positions of power and influence were so held is not surprising in a community where 80% of the population is Mexican-American. As was emphasized by District Judge Garza, the able Mexican-American jurist who presided over the habeas proceedings in the District Court, this case is unique. Every other jury discrimination case reaching this Court has involved a situation where the governing majority, and the resulting power over the jury selection process, was held by a white electorate and white officials. [n6] [p515]
The most significant fact in this case, all but ignored in the Court's opinion, is that a majority of the jury commissioners were Mexican-American. The jury commission is the body vested by Texas law with the authority to select grand jurors. Under the Texas selection system, as noted by the Court, ante at 484-485, 497, the jury commission has the opportunity to identify in advance those potential jurors who have Spanish surnames. In these circumstances, where Mexican-Americans control both the selection of jurors and the political process, rational inferences from the most basic facts in a democratic society render improbable respondent's claim of an intent to discriminate against him and other Mexican-Americans. As Judge Garza observed: "If people in charge can choose whom they want, it is unlikely they will discriminate against themselves." 384 F.Supp. 79, 90.
That individuals are more likely to discriminate in favor of, than against, those who share their own identifiable attributes is the premise that underlies the cases recognizing that the criminal defendant has a personal right under the Fourteenth Amendment not to have members of his own class excluded from jury service. Discriminatory exclusion of members of the defendant's class has been viewed as unfairly excluding persons who may be inclined to favor the defendant. See [p516] Strauder v. West Virginia, 100 U.S. at 309. Were it not for the perceived likelihood that jurors will favor defendants of their own class, there would be no reason to suppose that a jury selection process that systematically excluded persons of a certain race would be the basis of any legitimate complaint by criminal defendants of that race. Only the individuals excluded from jury service would have a personal right to complain.
In Akins v. Texas, where apparently no Negro was on the jury commission and only 1 of 16 was on the jury panel, the Court emphasized the high threshold of proof required to brand officers of the court with discriminatory intent:
An allegation of discriminatory practices in selecting a grand jury panel challenges an essential element of proper judicial procedure -- the requirement of fairness on the part of the judicial arm of government in dealing with persons charged with criminal offenses. It cannot lightly be concluded that officers of the courts disregard this accepted standard of justice.
325 U.S. at 400-401. With all respect, I am compelled to say that the Court today has "lightly" concluded that the grand jury commissioners of this county have disregarded not only their sworn duty, but also their likely inclination to assure fairness to Mexican-Americans. [n7] [p517]
It matters little in this case whether such judicially noticeable facts as the composition of the grand jury commission are viewed as defeating respondent's prima facie case at the outset or as rebutting it after it was established by statistical evidence. The significance of the prima facie case is limited to its effect in shifting the burden of going forward to the State. Once the State has produced evidence either by presenting proof or by calling attention to facts subject to judicial notice -- the only question is whether the evidence in the record is sufficient to demonstrate deliberate and systematic discrimination in the jury selection process.
Here, respondent produced statistics showing that Mexican-Americans -- while substantially represented on the grand jury lists -- were not represented in numbers proportionate to their share of the total population. The State responded by presenting the testimony of the judge who appointed the grand jury commissioners. Other facts, such as the presence of Mexican-Americans in a majority of the elective positions of the county, entered the record through judicial notice. The testimony, together with the facts noted by the District Court, sufficed to satisfy the State's burden of production even assuming that respondent's evidence was sufficient to give rise to such a burden. Accordingly, at the close of the evidence, the question for the District Court was whether respondent had demonstrated by a preponderance of the evidence that the State had "deliberately and systematically den[ied] to members of [respondent's class] the right to participate as jurors in the administration of justice." Alexander, 405 U.S. at 628-629. The District Court found that the judge and jury commissioners had not intentionally discriminated against Mexican-Americans. 384 F.Supp. at 90. At the very least, that finding was not clearly erroneous. [n8] [p518]
The Court labels it "inexplicable" that the State introduced only the testimony of the state trial judge. Ante at 498. Perhaps the State fairly may be faulted for not presenting more evidence than it did. But until today's decision, one may doubt whether many lawyers familiar with our cases would have thought that respondent's statistics, under the circumstances of this case and prevailing in Hidalgo County, were even arguably sufficient to establish deliberate and systematic discrimination.
There is, for me, a sense of unreality when Justices here in Washington decide solely on the basis of inferences from statistics that the Mexican-Americans who control the levers of power in this remote border county are manipulating them to discriminate "against themselves." In contrast, the judges on the scene, the state judge who appointed the jury commissioners and presided over respondent's trial and the United States District Judge -- both Mexican-Americans and familiar with the community -- perceived no basis for respondent's claim of invidious discrimination.
It seems to me that the Court today, in rejecting the District Court's finding that no such discrimination took place, has erred grievously. I would reinstate the judgment of the District Court.
1. A strong case may be made that claims of grand jury discrimination are not cognizable on federal habeas corpus after Stone v. Powell, 428 U.S. 465 (1976). In Stone, we held that
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Id. at 494 (footnotes omitted). Unlike the prisoner in Stone, who could complain that his conviction rested on evidence tainted by Fourth Amendment violations and could ask for a new trial with that evidence excluded, the prisoner in this case challenges only the now moot determination by the grand jury that there was sufficient cause to proceed to trial. He points to no flaw in the trial itself. As in Stone, the incremental benefit of extending habeas corpus as a means of correcting unconstitutional grand jury selection procedures might be viewed as "outweighed by the acknowledged costs to other values vital to a rational system of criminal justice." Ibid.
But as this issue was not addressed below and was not briefed or argued in this Court, it would be inappropriate to resolve it in this case.
2. It may be that nondiscriminatory methods of selection will, over time, result in a representative grand jury. See Carter v. Jury Comm'n, 396 U.S. 320, 330 (1970). But the Fourteenth Amendment does not mandate that result. Nothing would prevent a State for example, from seeking to assure informed decisionmaking by requiring that all grand jurors be lawyers familiar with the criminal law; and if that requirement should result in substantial underrepresentation on grand juries of some segments of the community in some areas of the State, the Fourteenth Amendment would not render the selection process unconstitutional.
3. Although Davis and Arlington Heights make clear that proof of discriminatory intent is required and that proof of impact or effect alone is not sufficient, we did recognize in Arlington Heights that a lesser burden may be appropriate in the context of jury selection.
Because of the nature of the jury selection task . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach the extremes of Yick Wo or Gomillion.
429 U.S. at 266 n. 13. As one illustration, we cited Turner v. Fouche, 396 U.S. 346 (1970).
In Turner, the statistical evidence showed that Negroes constituted 60% of the general population and 37% of those included in the grand jury list. The Court found that the disparity between those figures was not so "insubstantial" as to foreclose corrective action by a federal court. Id. at 359. But the Court did not view the statistics in isolation. Turner was not a criminal case; it involved instead Georgia's peculiar system of appointing the county board of education. The circuit judge appointed jury commissioners, who in turn selected the grand jury. The grand jury, in turn, selected the board of education. At every layer of this system, white citizens were in total control. Even though all of the students in the county schools were Negro, every white pupil having transferred elsewhere, all of the members of the board of education were white, as were all of the members of the jury commission. The District Court had found that, until the suit was instituted, "Negroes had been systematically excluded from the grand juries through token inclusion." Id. at 352. It was against this background of pervasive discrimination that the Court found that even a new grand jury list with 37% Negro representation was the product of continued, purposeful discrimination.
By contrast, in Carter v. Jury Comm'n, supra at 338-339, isolated proof that, for 12 years, no Negro had been appointed to the jury commission of a predominantly Negro county was found insufficient, standing alone, to establish discriminatory intent.
4. The Court's reliance on the "opportunity for discrimination" noted in Alexander, ante at 495, 497, is clearly misplaced. The Court has held repeatedly that the Texas system of selecting grand jurors by the use of jury commissioners is "fair on its face and capable of being utilized without discrimination." Hernandez v. Texas, 347 U.S. 475, 478-479 (1954); accord, Smith v. Texas, 311 U.S. 128, 130 (1940). The "subjectivity" of the selection system cuts in favor of the State where, as here, those who control the selection process are members of the same class as the person claiming discrimination. See text, infra at 515-516.
Apart from Alexander and Turner, see n. 3, supra, this Court has sustained claims of grand jury discrimination in two situations. Most of the cases involve total exclusion of minorities from participation on grand juries: Reece v. Georgia, 350 U.S. 85 (1955) (no Negro jurors in 18 years); Hernandez v. Texas, supra, (no Mexican-American jurors in 25 years); Patton v. Mississippi, 332 U.S. 463 (1947) (no Negro jurors in 30 years); Hill v. Texas, 316 U.S. 400 (1942) (no Negro grand jurors in 16 years or more); Pierre v. Louisiana, 306 U.S. 354 (1939) (no Negro grand jurors in 20 years); Hale v. Kentucky, 303 U.S. 613 (1938) (no Negro jurors); Norris v. Alabama, 294 U.S. 587 (1935) (no Negro jurors in a "long number" of years); Rogers v. Alabama, 192 U.S. 226 (1904) (no Negro jurors); Carter v. Texas, 177 U.S. 442 (1900) (no Negro jurors); Bush v. Kentucky, 107 U.S. 110 (1883) (no Negro jurors); Neal v. Delaware, 103 U.S. 370 (1881) (no Negro jurors); Strauder v. West Virginia, 100 U.S. 303 (1880) (no Negro jurors). The remainder of the cases involve severe limitation of a minority's participation by token inclusion: Sims v. Georgia, 389 U.S. 404 (1967) (Negroes constituting 24.4% of the taxpayers limited to 4.7% of those on the grand jury list); Jones v. Georgia, 389 U.S. 24 (1967) (Negroes constituting 19.7% of the taxpayers limited to 5% of those on the jury list); Whitus v. Georgia, 385 U.S. 545 (1967) (Negroes constituting 27.1% of the taxpayers limited to 9.1% of the grand jury venire); Arnold v. North Carolina, 376 U.S. 773 (1964) (one Negro juror in 24 years); Eubanks v. Louisiana, 356 U.S. 584 (1958) (one Negro juror in 18 years); Cassell v. Texas, 339 U.S. 282 (1950) (limitation of one Negro juror on each panel); Smith v. Texas, supra, (five Negro grand jurors in a 7-year period).
5. The District Court noted that the number of Mexican-Americans on the grand jury might have been higher had it not been for the inability of the sheriff, a Mexican-American, to locate four of the original members of the array who were Mexican-American. 384 F.Supp. 79, 83. Under Texas law, 9 of the 12 grand jurors must concur before an indictment can be presented. Tex.Code Crim.Proc., Art. 20.19 (1966).
6. I do not suggest, of course, that the mere fact that Mexican-Americans constitute a majority in Hidalgo County is dispositive. There are many communities in which, by virtue of historical or other reasons, a majority of the population may not be able at a particular time to control or significantly influence political decisions or the way the system operates. See Turner v. Fouche, 396 U.S. 346 (1970). But no one can contend seriously that Hidalgo County is such a community. The classic situation in which a "minority group" may suffer discrimination in a community is where it is "relegated to . . . a position of political powerlessness." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Here, the Mexican-Americans are not politically "powerless"; they are the majoritarian political element of the community, with demonstrated capability to elect and protect their own.
Nor do I suggest that persons in positions of power can never be shown to have discriminated against other members of the same ethnic or racial group. I would hold only that respondent's statistical evidence, without more, is insufficient to prove a claim of discrimination in this case.
7. I agree with MR. JUSTICE MARSHALL, ante at 504, that stereotypes concerning identifiable classes in our society have no place in the decisions of this Court. For that reason, I consider it inappropriate to characterize the Mexican-American majority in Hidalgo County as a "minority group," and, on that basis, to suggest that these Mexican-Americans may have "adopt[ed] the majority's negative attitudes towards the minority." Ante at 503. This type of speculation illustrates the lengths to which one must go to buttress a holding of purposeful discrimination that otherwise is based solely on a lack of proportional representation.
8. Nothing in this case remotely resembles the stark discrimination in Gomillion v. Lightfoot, 364 U.S. 339 (1960), and Yick Wo v. Hopkins, 118 U.S. 356 (1886). Nor do the statistics in this case approach the degree of exclusion that has characterized the cases in which we have previously found grand jury discrimination. See n. 4, supra. In this case, in the year in which the respondent was indicted, 52.5% of the persons on the grand jury lists were Mexican-American. Ante at 487 n. 7. In its preoccupation with the disparity of representation of Mexican-Americans in the total population and on the grand jury lists, the Court loses sight of the constitutional standard. Respondent has no right to "proportional representation" of Mexican-Americans, Carter v. Jury Comm'n, 396 U.S. at 339. He has only the right "to require that the State not deliberately and systematically deny to [Mexican-Americans] the right to participate as jurors in the administration of justice." Alexander, 405 U. at 628-629.