No. 75-1552
Argued: November 9, 1976Decided: March 23, 1977
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- (a) None of the evidence in the record rebutted respondent’s prima facie case. The State offered only the testimony of the State District
- Judge who had selected the jury commissioners, dealing principally with the selection of the commissioners and the instructions given them, and did not call the commissioners themselves to testify. Without evidence about the method by which the commissioners determined the other qualifications for grand jurors prior to the statutory time for testing qualifications, no inference explaining the disparity by reference to the literacy, sound mind, moral character, and criminal record qualifications can be drawn from the statistics about the population as a whole. Pp. 497-499.
- (b) Nor did the District Court’s “governing majority” theory dispel the presumption of intentional discrimination. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. Furthermore, the relevance of a governing majority of elected officials to the grand jury selection process is questionable, and even if a “governing majority” theory has general applicability in cases of this kind, the record in this case is inadequate to permit such an approach. Pp. 499-500.
524 F.2d 481, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 501. BURGER, C. J., filed a dissenting opinion, in which POWELL and REHNQUIST, JJ., joined, post, p. 504. STEWART, J., filed a dissenting opinion, post, p. 507. POWELL, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 507.
Thomas Parker Beery argued the cause and filed a brief for petitioner.
David G. Hall argued the cause for respondent. With him on the brief was Melvin L. Wulf.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The sole issue presented in this case is whether the State of Texas, in the person of petitioner, the Sheriff of Hidalgo County, successfully rebutted respondent prisoner’s prima facie showing of discrimination against Mexican-Americans [430 U.S. 482, 484] in the state grand jury selection process. In his brief, petitioner, in claiming effective rebuttal, asserts:
- “This list [of the grand jurors that indicted respondent] indicates that 50 percent of the names appearing thereon were Spanish. The record indicates that 3 of the 5 jury commissioners, 5 of the grand jurors who returned the indictment, 7 of the petit jurors, the judge presiding at the trial, and the Sheriff who served notice on the grand jurors to appear had Spanish surnames.” Brief for Petitioner 6.
I
This Court on prior occasions has considered the workings of the Texas system of grand jury selection. See Hernandez v. Texas, 347 U.S. 475 (1954); Cassell v. Texas, 339 U.S. 282 (1950); Akins v. Texas, 325 U.S. 398 (1945); Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128 (1940). Texas employs the “key man” system, which relies on jury commissioners to select prospective grand jurors from the community at large. 1 The procedure begins with the state district judge’s appointment of from three to five persons to serve as jury commissioners. Tex. Code Crim. Proc., Art. 19.01 (1966). 2 The commissioners then “shall select not less than 15 nor more than 20 persons from the citizens of different portions of the county” to compose the list from which the actual grand jury will be drawn. Art. 19.06 (Supp. 1976-1977). 3 When at least 12 of the persons on the list appear in [430 U.S. 482, 485] court pursuant to summons, the district judge proceeds to “test their qualifications.” Art. 19.21. The qualifications themselves are set out in Art. 19.08: A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be “of sound mind and good moral character,” be literate, have no prior felony conviction, and be under no pending indictment “or other legal accusation for theft or of any felony.” Interrogation under oath is the method specified for testing the prospective juror’s qualifications. Art. 19.22. The precise questions to be asked are set out in Art. 19.23, which, for the most part, tracks the language of Art. 19.08. After the court finds 12 jurors who meet the statutory qualifications, they are impaneled as the grand jury. Art. 19.26.
II
Respondent, Rodrigo Partida, was indicted in March 1972 by the grand jury of the 92d District Court of Hidalgo County for the crime of burglary of a private residence at night with intent to rape. Hidalgo is one of the border counties of southern Texas. After a trial before a petit jury, respondent was convicted and sentenced to eight years in the custody of the Texas Department of Corrections. He first raised his claim of discrimination in the grand jury selection process on a motion for new trial in the State District Court. 4 In support [430 U.S. 482, 486] of his motion, respondent testified about the general existence of discrimination against Mexican-Americans in that area of Texas and introduced statistics from the 1970 census and the Hidalgo County grand jury records. The census figures show that in 1970, the population of Hidalgo County was 181,535. United States Bureau of the Census, 1970 Census of Population, Characteristics of the Population, vol. 1, pt. 45, 1, Table 119, p. 914. Persons of Spanish language or Spanish surname totaled 143,611. Ibid., and id., Table 129, p. 1092. 5 On the assumption that all the persons of Spanish language or Spanish surname were Mexican-Americans, these figures show that 79.1% of the county’s population was Mexican-American. 6 [430 U.S. 482, 487]
Respondent’s data compiled from the Hidalgo County grand jury records from 1962 to 1972 showed that over that period, the average percentage of Spanish-surnamed grand jurors was 39%. 7 In the 2 1/2-year period during which the District Judge who impaneled the jury that indicted respondent was in charge, the average percentage was 45.5%. On the list from which the grand jury that indicted respondent was selected, 50% were Spanish surnamed. The last set of data that respondent introduced, again from the 1970 census, illustrated a number of ways in which Mexican-Americans tend to be underprivileged, including poverty-level incomes, less desirable jobs, substandard housing, and lower levels of [430 U.S. 482, 488] education. 8 The State offered no evidence at all either attacking respondent’s allegations of discrimination or demonstrating that his statistics were unreliable in any way. î [430 U.S. 482, 489] The State District Court, nevertheless, denied the motion for a new trial.
On appeal, the Texas Court of Criminal Appeals affirmed the conviction. Partida v. State, 506 S. W. 2d 209 (1974). Reaching the merits of the claim of grand jury discrimination, the court held that respondent had failed to make out a prima facie case. In the court’s view, he should have shown how many of the females who served on the grand juries were Mexican-Americans married to men with Anglo-American surnames, how many Mexican-Americans were excused for reasons of age or health, or other legal reasons, and how many [430 U.S. 482, 490] of those listed by the census would not have met the statutory qualifications of citizenship, literacy, sound mind, moral character, and lack of criminal record or accusation. Id., at 210-211. Quite beyond the uncertainties in the statistics, the court found it impossible to believe that discrimination could have been directed against a Mexican-American, in light of the many elective positions held by Mexican-Americans in the county and the substantial representation of Mexican-Americans on recent grand juries. 9 Id., at 211. In essence, the court refused to presume that Mexican-Americans would discriminate against their own kind.
After exhausting his state remedies, respondent filed his petition for habeas corpus in the Federal District Court, alleging a denial of due process and equal protection, guaranteed by the Fourteenth Amendment, because of gross underrepresentation of Mexican-Americans on the Hidalgo County grand juries. At a hearing at which the state transcript was introduced, petitioner presented the testimony of the state judge who selected the jury commissioners who had compiled the list from which respondent’s grand jury was taken. The judge first reviewed the State’s grand jury selection process. In selecting the jury commissioners, the judge stated that he tried to appoint a greater number of Mexican-Americans than members of other ethnic groups. He testified that he instructed the commissioners about the qualifications of a grand juror and the exemptions provided by law. The record is silent, however, with regard to instructions dealing with the potential problem of discrimination directed against any identifiable group. The judge admitted that the actual results [430 U.S. 482, 491] of the selection process had not produced grand jury lists that were “representative of the ethnic balance in the community.” 10 App. 84. The jury commissioners themselves, who were the only ones in a position to explain the apparent substantial underrepresentation of Mexican-Americans and to provide information on the actual operation of the selection process, were never called.
On the basis of the evidence before it, the court concluded that respondent had made out a “bare prima facie case” of invidious discrimination with his proof of “a long continued disproportion in the composition of the grand juries in Hidalgo County.” 384 F. Supp. 79, 90 (SD Tex. 1974) (emphasis in original). Based on an examination of the reliability of the statistics offered by respondent, however, despite the lack of evidence in the record justifying such an inquiry, the court stated that the prima facie case was weak. The court believed that the census statistics did not reflect the true situation accurately, because of recent changes in the Hidalgo County area and the court’s own impression of the demographic characteristics of the Mexican-American community. On the other hand, the court recognized that the Texas key-man system of grand jury selection was highly subjective, and was “archaic and inefficient,” id., at 91, and that this was a factor arguing for less tolerance in the percentage differences. On balance, the court’s doubts about the reliability of the statistics, coupled with its opinion that Mexican-Americans constituted a “governing majority” in the county, caused it to conclude that the prima facie case was rebutted. The “governing [430 U.S. 482, 492] majority” theory distinguished respondent’s case from all preceding cases involving similar disparities. On the basis of those findings, the court dismissed the petition. 11
The United States Court of Appeals for the Fifth Circuit reversed. 524 F.2d 481 (1975). It agreed with the District Court that respondent had succeeded in making out a prima facie case. It found, however, that the State had failed to rebut that showing. The “governing majority” theory contributed little to the State’s case in the absence of specific proof to explain the disparity. In light of the State’s abdication of its responsibility to introduce controverting evidence, the court held that respondent was entitled to prevail.
We granted certiorari to consider whether the existence of a “governing majority” in itself can rebut a prima facie case of discrimination in grand jury selection, and, if not, whether the State otherwise met its burden of proof. 426 U.S. 934 (1976).
III
A. This Court has long recognized that “it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State . . . .” 12 Hernandez v. Texas, 347 U.S., at 477 . See [430 U.S. 482, 493] Alexander v. Louisiana, 405 U.S. 625, 628 (1972); Carter v. Jury Comm’n, 396 U.S. 320, 330 (1970). See also Peters v. Kiff, 407 U.S. 493, 497 (1972) (plurality opinion); id., at 507 (dissenting opinion). While the earlier cases involved absolute exclusion of an identifiable group, later cases established the principle that substantial underrepresentation of the group constitutes a constitutional violation as well, if it results from purposeful discrimination. See Turner v. Fouche, 396 U.S. 346 (1970); Carter v. Jury Comm’n, supra; Whitus v. Georgia, 385 U.S. 545, 552 (1967); Swain v. Alabama, 380 U.S. 202 (1965); Cassell v. Texas, 339 U.S. 282 (1950). Recent cases have established the fact that an official act is not unconstitutional solely because it has a racially disproportionate impact. Washington v. Davis, 426 U.S. 229, 239 (1976); see Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 -265 (1977). Nevertheless, as the Court recognized in Arlington Heights, “[s]ometimes 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.” Id., at 266. In Washington v. Davis, the application of these principles to the jury cases was considered:
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- “It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an `unequal application of the law . . . as to show intentional discrimination.’ . . . A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community,
- . . . or with racially non-neutral selection procedures . . . . With a prima facie case made out, `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.’ Alexander [v. Louisiana, 405 U.S.,] at 632.” 426 U.S., at 241 .
See Arlington Heights, supra, at 266 n. 13.
Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Hernandez v. Texas, 347 U.S., at 478 -479. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480. See Norris v. Alabama, 294 U.S. 587 (1935). This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class. 13 Hernandez v. Texas, 347 U.S., at 480 . Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U.S., at 241 ; Alexander v. Louisiana, 405 U.S., at 630 . [430 U.S. 482, 495] Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
B. In this case, it is no longer open to dispute that Mexican-Americans are a clearly identifiable class. See, e. g., Hernandez v. Texas, supra. Cf. White v. Regester, 412 U.S. 755, 767 (1973). The statistics introduced by respondent from the 1970 census illustrate disadvantages to which the group has been subject. Additionally, as in Alexander v. Louisiana, the selection procedure is not racially neutral with respect to Mexican-Americans; Spanish surnames are just as easily identifiable as race was from the questionnaires in Alexander or the notations and card colors in Whitus v. Georgia, supra, and in Avery v. Georgia, 345 U.S. 559 (1953). 14
The disparity proved by the 1970 census statistics showed that the population of the county was 79.1% Mexican-American, but that, over an 11-year period, only 39% of the persons summoned for grand jury service were Mexican-American. 15 This difference of 40% is greater than that found significant in Turner v. Fouche, 396 U.S. 346 (1970) [430 U.S. 482, 496] (60% Negroes in the general population, 37% on the grand jury lists). Since the State presented no evidence showing why the 11-year period was not reliable, we take it as the relevant base for comparison. 16 The mathematical disparities that have been accepted by this Court as adequate for a prima facie case have all been within the range presented here. For example, in Whitus v. Georgia, 385 U.S. 545 (1967), the number of Negroes listed on the tax digest amounted to 27.1% of the taxpayers, but only 9.1% of those on the grand jury venire. The disparity was held to be sufficient to make out a prima facie case of discrimination. See Sims v. Georgia, 389 U.S. 404 (1967) (24.4% of tax lists, 4.7% of grand jury lists); Jones v. Georgia, 389 U.S. 24 (1967) (19.7% of tax lists, 5% of jury list). We agree with the District Court and the Court of Appeals that the proof in this case was enough to establish a prima facie case of discrimination against the Mexican-Americans in the Hidalgo County grand jury selection. 17 [430 U.S. 482, 497]
Supporting this conclusion is the fact that the Texas system of selecting grand jurors is highly subjective. The facial constitutionality of the key-man system, of course, has been accepted by this Court. See, e. g., Carter v. Jury Comm’n, 396 U.S. 320 (1970); Akins v. Texas, 325 U.S. 398 (1945); Smith v. Texas, 311 U.S. 128 (1940). Nevertheless, the Court has noted that the system is susceptible of abuse as applied. 18 See Hernandez v. Texas, 347 U.S., at 479 . Additionally, as noted, persons with Spanish surnames are readily identifiable.
The showing made by respondent therefore shifted the burden of proof to the State to dispel the inference of intentional [430 U.S. 482, 498] discrimination. Inexplicably, the State introduced practically no evidence. The testimony of the State District Judge dealt principally with the selection of the jury commissioners and the instructions given to them. The commissioners themselves were not called to testify. A case such as Swain v. Alabama, 380 U.S., at 207 n. 4, 209, illustrates the potential usefulness of such testimony, when it sets out in detail the procedures followed by the commissioners. 19 The opinion of the Texas Court of Criminal Appeals is particularly revealing as to the lack of rebuttal evidence in the record:
- “How many of those listed in the census figures with Mexican-American names were not citizens of the state, but were so-called `wet-backs’ from the south side of the Rio Grande; how many were migrant workers and not residents of Hidalgo County; how many were illiterate and could not read and write; how many were not of sound mind and good moral character; how many had been convicted of a felony or were under indictment or legal accusation for theft or a felony; none of these facts appear in the record.” 506 S. W. 2d, at 211 (emphasis added).
In fact, the census figures showed that only a small part of the population reported for Hidalgo County was not native born. See n. 6, supra. Without some testimony from the grand jury commissioners about the method by which they determined the other qualifications for grand jurors prior to the statutory time for testing qualifications, it is impossible [430 U.S. 482, 499] to draw any inference about literacy, sound mind and moral character, and criminal record from the statistics about the population as a whole. See n. 8, supra. These are questions of disputed fact that present problems not amenable to resolution by an appellate court. We emphasize, however, that we are not saying that the statistical disparities proved here could never be explained in another case; we are simply saying that the State did not do so in this case. See Turner v. Fouche, 396 U.S., at 361 .
C. In light of our holding that respondent proved a prima facie case of discrimination that was not rebutted by any of the evidence presently in the record, we have only to consider whether the District Court’s “governing majority” theory filled the evidentiary gap. In our view, it did not dispel the presumption of purposeful discrimination in the circumstances of this case. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. Indeed, even the dissent of MR. JUSTICE POWELL does not suggest that such a presumption would be appropriate. See post, at 514-516, n. 6, 516 n. 7. The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this. 20
Furthermore, the relevance of a governing majority of elected officials to the grand jury selection process is questionable. The fact that certain elected officials are Mexican-American demonstrates nothing about the motivations and methods of the grand jury commissioners who select persons for grand jury lists. The only arguably relevant fact in this [430 U.S. 482, 500] record on the issue is that three of the five jury commissioners in respondent’s case were Mexican-American. Knowing only this, we would be forced to rely on the reasoning that we have rejected – that human beings would not discriminate against their own kind – in order to find that the presumption of purposeful discrimination was rebutted. Without the benefit of this simple behavioral presumption, discriminatory intent can be rebutted only with evidence in the record about the way in which the commissioners operated and their reasons for doing so. It was the State’s burden to supply such evidence, once respondent established his prima facie case. The State’s failure in this regard leaves unchallenged respondent’s proof of purposeful discrimination.
Finally, even if a “governing majority” theory has general applicability in cases of this kind, the inadequacy of the record in this case does not permit such an approach. Among the evidentiary deficiencies are the lack of any indication of how long the Mexican-Americans have enjoyed “governing majority” status, the absence of information about the relative power inherent in the elective offices held by Mexican-Americans, and the uncertain relevance of the general political power to the specific issue in this case. Even for the most recent time period, when presumably the political power of Mexican-Americans was at its greatest, the discrepancy between the number of Mexican-Americans in the total population and the number on the grand jury lists was substantial. Thus, under the facts presented in this case, the “governing majority” theory is not developed fully enough to satisfy the State’s burden of rebuttal.
IV
Rather than relying on an approach to the jury discrimination question that is as faintly defined as the “governing majority” theory is on this record, we prefer to look at all the facts that bear on the issue, such as the statistical disparities, the method of selection, and any other relevant testimony as [430 U.S. 482, 501] to the manner in which the selection process was implemented. Under this standard, the proof offered by respondent was sufficient to demonstrate a prima facie case of discrimination in grand jury selection. Since the State failed to rebut the presumption of purposeful discrimination by competent testimony, despite two opportunities to do so, we affirm the Court of Appeals’ holding of a denial of equal protection of the law in the grand jury selection process in respondent’s case.
