MR. JUSTICE MARSHALL announced the judgment of the Court and an opinion in which MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART join.
Petitioner alleges that Negroes were systematically excluded 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 respondent contends that he has not suffered any unconstitutional 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.2d 370 (CA5 1971).
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 respondent argues that the challenge to the petit jury is not before 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 the principles governing the two claims are identical. First, it appears that the same selection process was used for both the grand jury and
This Court has never before considered a white defendant's challenge to the exclusion of Negroes from jury service.
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 were systematically 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,
It is a separate question, however, whether petitioner is entitled to the relief he seeks on the basis of that constitutional violation. Respondent argues that even if the grand and petit juries were unconstitutionally selected, petitioner is not entitled to relief on that account because 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 presumption that a jury so constituted will be prejudiced against him; that no such presumption is available to a white defendant; and consequently that a white defendant must introduce 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 exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of related constitutional values.
In Strauder v. West Virginia, 100 U.S. 303, 308-309 (1880), this Court considered the question from the point
But even in 1880 the Court recognized that other constitutional values were implicated. In Strauder, the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members 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 stigmatizes 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." Ibid. It is now clear that injunctive relief is available to vindicate these interests of the excluded jurors and the stigmatized class.
Moreover, the Court has also recognized that the exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section 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 is guaranteed, in certain circumstances, by the Sixth Amendment. We concluded that it comprehends, inter alia, "a fair possibility for obtaining a representative cross-section of the community." 399 U. S., at 100.
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). The due process right to a competent and impartial tribunal is quite separate from the right to any particular form of proceeding. Due process requires a competent and impartial tribunal in administrative hearings, Goldberg v. Kelly, 397 U.S. 254, 271 (1970), and in trials to a judge, Tumey v. Ohio, 273 U.S. 510 (1927). Similarly, if a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition 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 protects 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 intimidated by the threat of mob violence, Moore v. Dempsey, 261 U.S. 86 (1923), or by jurors who
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, too, was well established long before the right to jury trial was made applicable in state trials, and does not depend on it. Thus it has been invoked in trials to a judge, e. g., Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); and in pre-Duncan state jury trials, e. g., Turner v. Louisiana, 379 U.S. 466 (1965); Estes v. Texas, 381 U.S. 532, 550 (1965). In Tumey v. Ohio, supra, this Court held that a judge could not, consistent with due process, try a case when he had a financial stake in the outcome, notwithstanding the possibility that he might resist the temptation to be influenced by that interest. And in Turner v. Louisiana, supra, the Court held that a jury could not, consistent with due process, try a case after it had been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association. As this Court said in In 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 violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process.
If it were possible to say with confidence that the risk of bias resulting from the arbitrary action involved here is confined to cases involving Negro defendants,
But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. First, if we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society.
Moreover, we are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown 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 its exclusion deprives the jury of a
It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. See Speiser v. Randall, 357 U.S. 513, 525-526 (1958); In re Winship, 397 U.S. 358, 370-373 (1970) (Harlan, J., concurring). In light of the great potential for harm latent in an unconstitutional jury-selection system,
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 systematically excluded from jury service.
Having 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 regard to other exclusions from jury service, it is clear beyond all doubt that the exclusion of Negroes cannot pass constitutional muster. Accordingly, if petitioner's allegations are correct, 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 conviction can stand. Since he was precluded from proving the facts alleged in support of his claim, the judgment must be reversed and the case remanded for further proceedings consistent with this opinion.
Reversed and remanded.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE POWELL join, concurring in the judgment.
Since March 1, 1875, the criminal laws of the United States have contained a proscription to the following effect:
By this unambiguous provision, now contained in 18 U. S. C. § 243, Congress put cases involving exclusions
The consequence is that where jury commissioners disqualify citizens on the grounds of race, they fail "to perform their constitutional duty—recognized by § 4 of the Civil Rights Act of March 1, 1875 . . . and fully established since the decision in 1881 of Neal v. Delaware. . . 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). Thus, "no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid . . . . [I]t is our duty as well as the State's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained." Id., at 406.
It is true that the defendant in Hill was a Negro and petitioner here 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 service where the defendant was not a member of the excluded class. I also recognize that, as in this case, the courts of appeals reflecting the generally accepted constitutional view, have rejected claims such as petitioner presents here. For me, however, the rationale and operative language of Hill v. Texas suggest a broader
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.
There is no longer any question, of course, that persons may not be excluded from juries on account of race. Such exclusions are plainly unlawful and deserving of condemnation. That, however, is not the issue before us. The real issue is whether such illegality necessarily voids a criminal conviction, absent any demonstration of prejudice, or basis for presuming prejudice, to the accused.
Petitioner was indicted for the offense of burglary on June 6, 1966, and thereafter convicted. The conviction was reversed on direct appeal, and the case was remanded for a new trial. Petitioner was retried on December 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 relevant 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.
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, e. 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 (1880). These decisions 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 which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy."
While the opinion of MR. JUSTICE MARSHALL refrains from relying on the Equal Protection Clause, it concludes that if petitioner's allegations are true, he has been denied due process of law. The opinion seeks to equate petitioner'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 mentally 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 (1923), cf. Turner v. Louisiana, 379 U.S. 466 (1965), or has had direct personal involvement with the events underlying a criminal contempt charge. Mayberry 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 showing 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. S., at 136. Recognizing this limitation, the Court in Witherspoon v. Illinois, 391 U.S. 510
See also Fay v. New York, 332 U.S. 261, 280-281 (1947). Here three 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 allwhite juries tend to be prejudiced against white defendants in nonracial criminal proceedings.
The opinion of MR. JUSTICE MARSHALL seeks to magnify this wholly speculative likelihood of prejudice by noting that the effect of excluding "any large and identifiable segment of the community . . . is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable," and "that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented." Ante, at 503-504. I completely agree that juries should not be deprived of the insights of the various
Nor do I believe that the illegality of the alleged exclusion can be viewed as tipping the scales toward finding a denial of due process. The question of a 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 justified 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 prejudice less remote or less speculative. 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 unlawful discrimination. But, judging from all existing authority, this is not a close case at all.
The opinion of MR. JUSTICE WHITE concurring in the judgment, 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. Texas, 316 U.S. 400,
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 Fourteenth Amendment, that persons cannot be denied the right to serve on juries because of their race; and second, to prevent racial exclusions from juries by providing criminal penalties for persons violating the statutory command. See Ex parte Virginia, 100 U.S. 339 (1880); Neal v. Delaware, 103 U.S. 370, 386 (1881). Insofar as the statute is declarative of rights secured by the Equal Protection Clause, it provides no authority for reaching a result that the Constitution itself does not require. No case has ever held that § 243 confers extra-constitutional rights on criminal defendants, and there is no support for the view that Congress intended to confer such rights when it enacted this legislation in 1875.
The opinion concurring in the judgment suggests that an expansive reading of § 243 is appropriate to "implement the strong statutory policy" against the exclusion
"The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded." Ballard v. United States, 329 U.S. 187, 193-194 (1946) (footnote omitted).