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
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.
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.
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
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
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
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).
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 . . . ."
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.
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).
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.
The showing made by respondent therefore shifted the burden of proof to the State to dispel the inference of intentional
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
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.
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
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.
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
It is so ordered.
MR. JUSTICE MARSHALL, concurring.
I join fully MR. JUSTICE BLACKMUN'S sensitive opinion for the Court. I feel compelled to write separately, however, to express my profound disagreement with the views expressed by MR. JUSTICE POWELL in his dissent.
As my Brother POWELL observes, post, at 507-508, there are three categories of evidence in this case that bear on the ultimate question whether respondent "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,' " post, at 517, quoting Alexander v. Louisiana, 405 U.S. 625, 628-629 (1972). First, there is the statistical evidence. That evidence reveals that for at least 10 years, Mexican-Americans have been grossly underrepresented on grand juries in Hidalgo County. As MR. JUSTICE BLACKMUN demonstrates, ante, at 496-497, n. 17, it is all but impossible that this sizable disparity was produced by chance. The statistical evidence, then, at the very least supports an inference that Mexican-Americans were discriminated against in the choice of grand jurors.
Second, there is testimony concerning the grand jury selection system employed in this case. That testimony indicates that the commissioners who constructed the grand jury panels
In every other case of which I am aware where the evidence showed both statistical disparity and discretionary selection procedures, this Court has found that a prima facie case of discrimination was established, and has required the State to explain how ostensibly neutral selection procedures had produced such nonneutral results. This line of cases begins with the decision almost a century ago in Neal v. Delaware, 103 U.S. 370 (1881), and extends to our recent decision in Alexander v. Louisiana, supra.
In the first place, MR. JUSTICE POWELL'S assumptions about human nature, plausible as they may sound, fly in the face of a great deal of social science theory and research. Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority's negative attitudes towards the minority.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST join, dissenting.
In addition to the views expressed in MR. JUSTICE POWELL'S dissent, I identify one other flaw in the Court's opinion. What the majority characterizes as a prima facie case of discrimination simply will not "wash." The decisions of this Court suggest, and common sense demands, that eligible population statistics, not gross population figures, provide the relevant starting point. In Alexander v. Louisiana, 405 U.S. 625, 630 (1972), for example, the Court in an opinion by MR. JUSTICE WHITE looked to the "proportion of blacks in the eligible population . . . ." (Emphasis supplied.)
The failure to produce evidence relating to the eligible population in Hidalgo County undermines respondent's claim that any statistical "disparity" existed in the first instance. Particularly where, as here, substantial numbers of members
The Court has not previously been called upon to deal at length with the sort of statistics required of persons challenging a grand jury selection system. The reason is that in our prior cases there was little doubt that members of identifiable minority groups had been excluded in large numbers. In Alexander v. Louisiana, supra, the challenger's venire included only one member of the identifiable class and the grand jury that indicted him had none. In Turner v. Fouche, 396 U.S. 346 (1970); Jones v. Georgia, 389 U.S. 24 (1967); Sims v. Georgia, 389 U.S. 404 (1967); and Whitus v. Georgia, 385 U.S. 545 (1967), there was at best only token inclusion of Negroes on grand jury lists. The case before us, in contrast, involves neither tokenism nor absolute exclusion; rather, the State has used a selection system resulting in the inclusion of large numbers of Spanish-surnamed citizens on grand jury lists. In this situation, it is particularly incumbent on respondent to adduce precise statistics demonstrating a significant disparity. To do that, respondent was obligated to demonstrate that disproportionately large numbers of eligible individuals were excluded systematically from grand jury service.
Respondent offered no evidence whatever in this respect. He therefore could not have established any meaningful case of discrimination, prima facie or otherwise. In contrast to respondent's approach, which the Court's opinion accepts without analysis, the Census Bureau's statistics for 1970 demonstrate that of the adults in Hidalgo County, 72%, not
But that is only the beginning. Respondent offered no evidence whatever with respect to other basic qualifications for grand jury service.
The Court's reliance on respondent's overbroad statistics is not the sole defect. As previously noted, one-half of the members of respondent's grand jury list bore Mexican-American surnames. Other grand jury lists at about the same time as respondent's indictment in March 1972 were predominantly Mexican-American. Thus, with respect to the September 1971 grand jury list, 70% of the prospective grand jurors were Mexican-American. In the January 1972 Term, 55% were Mexican-American. Since respondent was indicted in 1972, by what appears to have been a truly representative grand jury, the mechanical use of Hidalgo County's practices some 10 years earlier seems to me entirely indefensible. We do not know, and on this record we cannot know, whether respondent's 1970 gross population figures, which served as the basis for establishing the "disparity" complained of in this case, had any applicability at all to the period prior to 1970. Accordingly, for all we know, the 1970 figures may be totally
Therefore, I disagree both with the Court's assumption that respondent established a prima facie case and with the Court's implicit approval of respondent's method for showing an allegedly disproportionate impact of Hidalgo County's selection system upon Mexican-Americans.
MR. JUSTICE STEWART, dissenting.
In my view, the findings of the District Court in this case cannot be said to be "clearly erroneous." Fed. Rule Civ. Proc. 52 (a); United States v. United States Gypsum Co., 333 U.S. 364, 394-395.
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
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.
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
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 for-goes 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 Virgina, 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.
Proof of discriminatory intent in such a case was explicitly mandated in our recent decisions in Washington v. Davis, 426 U.S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). In Arlington Heights we said:
We also identified the following standards for resolving issues of discriminatory intent or purpose:
The analysis is essentially the same where the alleged discrimination is in the selection of a state grand jury.
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
Considered together, Davis, Arlington Heights, and Alexander make clear that statistical evidence showing underrepresentation
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,
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
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:
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.
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.
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.
Year No. persons on Av. No. Spanish Percentage grand jury list surnamed per list Spanish surnamed 1962 16 6 37.5% 1963 16 5.75 35.9% 1964 16 4.75 29.7% 1965 16.2 5 30.9% 1966 20 7.5 37.5% 1967 20.25 7.25 35.8% 1968 20 6.6 33% 1969 20 10 50% 1970 20 8 40% 1971 20 9.4 47% 1972 20 10.5 52.5%
Of the 870 persons who were summoned to serve as grand jurors over the 11-year period, 339, or 39%, were Spanish surnamed. See table showing Hidalgo County grand jury panels from 1962 to 1972, App. 17-18.
Second, it is difficult to draw valid inferences from the raw census data, since the data are incomplete in some places and the definition of "literacy" would undoubtedly be the subject of some dispute in any event. The State's failure to discuss the literacy problem at any point prior to oral argument compounds the difficulties. One gap in the data occurs with respect to the younger persons in the jury pool. The census reports for educational background cover only those who are 25 years of age and above. Yet the only age limitation on eligibility for grand jury service is qualification to vote. Tex. Code Crim. Proc., Art. 19.08 (Supp. 1976-1977). During the period to which the census figures apply, a person became qualified to vote at age 21. Tex. Elec. Code, Art. 5.01 (1967). (In 1975, Art. 5.01 was amended to give the franchise to all persons 18 and over. 1975 Tex. Gen. Laws, c. 682, § 3.) It is not improbable that the educational characteristics of persons in the younger age group would prove to be favorable to Mexican-Americans.
Finally, even assuming that the statistics for persons age 25 and over are sufficiently representative to be useful, a significant discrepancy still exists between the number of Spanish-surnamed people and the level of representation on grand jury lists. Table 83 of the 1970 census shows that of a total of 80,049 persons in that age group, 13,205 have no schooling. (Data for McAllen-Pharr-Edinburg Standard Metropolitan Statistical Area. This SMSA is identical to Hidalgo County.) Table 97 shows that of the 55,949 Spanish-surnamed persons in the group, 12,817 have no schooling. This means that of the 24,100 persons of all other races and ethnic groups, 388 have no schooling. Translated into percentages, 22.9% of the Spanish-surnamed persons have no schooling, and 1.6% of the others have no schooling. This means that 43,132 of the Spanish-surnamed persons have some schooling and 23,712 of the others have some schooling. The Spanish-surnamed persons thus represent 65% of the 66,844 with some schooling, and the others 35%. The 65% figure still creates a significant disparity when compared to the 39% representation on grand juries shown over the 11-year period involved here.
The suggestion is made in the dissenting opinion of THE CHIEF JUSTICE, post, at 504-506, that reliance on eligible population figures and allowance for literacy would defeat respondent's prima facie showing of discrimination. But the 65% to 39% disparity between Mexican-Americans over the age of 25 who have some schooling and Mexican-Americans represented on the grand jury venires takes both of THE CHIEF JUSTICE's concerns into account. Statistical analysis, which is described in more detail in n. 17, infra, indicates that the discrepancy is significant. If one assumes that Mexican-Americans constitute only 65% of the jury pool, then a detailed calculation reveals that the likelihood that so substantial a discrepancy would occur by chance is less than 1 in 10.
We prefer not to rely on the 65% to 39% disparity, however, since there are so many implicit assumptions in this analysis, and we consider it inappropriate for us, as an appellate tribunal, to undertake this kind of inquiry without a record below in which those assumptions were tested. We rest, instead, on the fact that the record does not show any way by which the educational characteristics are taken into account in the compilation of the grand jury lists, since the procedure established by the State provides that literacy is tested only after the group of 20 are summoned.
The data for the 2 1/2-year period during which the State District Judge supervised the selection process similarly support the inference that the exclusion of Mexican-Americans did not occur by chance. Of 220 persons called to serve as grand jurors, only 100 were Mexican-Americans. The expected Mexican-American representation is approximately 174 and the standard deviation, as calculated from the binomial model, is approximately six. The discrepancy between the expected and observed values is more than 12 standard deviations. Again, a detailed calculation shows that the likelihood of drawing not more than 100 Mexican-Americans by chance is negligible, being less than 1 in 10.
In Akins v. Texas, 325 U.S. 398 (1945), the statistical evidence involved only two grand jury panels; in Swain v. Alabama, 380 U.S. 202 (1965), the statistical disparity was small, and the methods of selection were explained.
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.
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.
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).
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.