No. 70-5026
Argued: Decided: April 3, 1972
- 1. Petitioner made out a prima facie case of invidious racial discrimination in the selection of the grand jury that indicted him – not only on a 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 rebutting the presumption of unconstitutionality in the procedures used. Cf. Avery v. Georgia, 345 U.S. 559 ; Whitus v. Georgia, 385 U.S. 545 . Pp. 628-632.
- 2. Petitioner’s contentions regarding discrimination against women in the selection of grand jurors are not reached. Pp. 633-634.
255 La. 941, 233 So.2d 891, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined, and in Part I of which DOUGLAS, J., joined. DOUGLAS, J., filed a concurring opinion, post, p. 634. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case. [405 U.S. 625, 626]
Charles Stephen Ralston argued the cause for petitioner. 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, Attorney General of Louisiana, Harry Howard, Assistant Attorney General, and Charles R. Sonnier.
Birch Bayh filed a brief for the National Federation of Business and Professional Women’s Clubs, Inc., as amicus curiae urging reversal.
MR. JUSTICE WHITE delivered the opinion of the Court.
After a jury trial in the District Court for the Fifteenth 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, 1 and this Court granted certiorari. 2 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. 3 Petitioner therefore argued that the indictment against him was invalid because it was returned by a grand jury impaneled from a venire made up contrary [405 U.S. 625, 627] to the requirements of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Petitioner’s motions were denied.
According to 1960 U.S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service; 4 of this total, 9,473 persons (21.06%) were Negro. 5 At the hearing on petitioner’s motions to quash the indictment, the evidence revealed that the Lafayette Parish jury commission consisted 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 themselves) and sent questionnaires to the persons on this list to determine those qualified for grand jury service. The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.76%) were from Negroes, 6 and the jury commissioners attached to each [405 U.S. 625, 628] questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, 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%). 7 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 this 20, was Negro.
I
For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal 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 v. West Virginia, 100 U.S. 303 (1880); Neal v. Delaware, 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 administration [405 U.S. 625, 629] of justice. 8 Ex parte Virginia, 100 U.S. 339 (1880); Gibson v. Mississippi, 162 U.S. 565 (1896). Cf. Hernandez v. Texas, 347 U.S. 475 (1954). It is only the application of these settled principles that is at issue here.
This is not a case where it is claimed that there have been no Negroes called for service within the last 30 years, Patton v. Mississippi, 332 U.S. 463, 464 (1947); only one Negro chosen within the last 40 years, Pierre v. Louisiana, 306 U.S. 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 progressive 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 grand jury was selected to indict him.
In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners 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 further reduction by one-half. [405 U.S. 625, 630] 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. 9
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. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situation [405 U.S. 625, 631] 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 names of prospective 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 discrimination. 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 “(c)” after their names as required by Georgia law 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 included or excluded anyone because of race; that they had placed on the jury list only those persons whom they 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 that 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 [405 U.S. 625, 632] established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U.S. 346, 361 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587 (1958). The State has not carried this burden in this case; it has not adequately explained the elimination of Negroes during the process of selecting 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 commission, 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 a prima facie case of systematic exclusion. Turner v. Fouche, supra, at 361; Jones v. Georgia, 389 U.S. 24, 25 (1967); Sims v. Georgia, 389 U.S. 404, 407 (1967). “The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.” Hernandez v. Texas, 347 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. The commissioners, in any event, had a duty “not to pursue a course of conduct in the administration of their office which would operate to discriminate 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. Carter v. 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. [405 U.S. 625, 633]
II
Petitioner also challenges the Louisiana statutory exemption of women who do not volunteer for grand jury service. Article 402, La. Code Crim. Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination 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 petitioner 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 presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U.S. 145 (1968), the Court held that because trial by jury in criminal cases under the Sixth Amendment is “fundamental to the American scheme of justice,” id., at 149, such a right was guaranteed to defendants 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.S. 516, 538 (1884).
Against this background and because petitioner’s conviction has been set aside on other 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 [405 U.S. 625, 634] State may or may not recharge petitioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again. See Ballard v. United States, 329 U.S. 187, 196 (1946).
- Reversed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
