407 U.S. 493 (1972), 71-5078, Peters v. Kiff

Docket Nº:No. 71-5078
Citation:407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83
Party Name:Peters v. Kiff
Case Date:June 22, 1972
Court:United States Supreme Court

Page 493

407 U.S. 493 (1972)

92 S.Ct. 2163, 33 L.Ed.2d 83




No. 71-5078

United States Supreme Court

June 22, 1972

Argued February 22, 1972




Petitioner contends in this habeas corpus proceeding that the systematic exclusion of Negroes from the grand jury that indicted him and the petit jury that convicted him deprived him of his rights to due process and equal protection. The Court of Appeals affirmed the District Court's denial of relief on the ground that petitioner, not being a Negro, suffered no unconstitutional discrimination.

Held: The judgment is reversed. Pp. 495-507.

441 F.2d 370, reversed and remanded.

[92 S.Ct. 2164] MR. JUSTICE MARSHALL, joined by MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART, concluded that:

1. Petitioner, under the circumstances of this case, has not abandoned his challenge to the petit jury by failing to include it in the list of questions presented by the writ of certiorari. Pp. 495-496.

2. A State cannot, consistent with due process, subject a defendant to indictment by a grand jury or trial by a petit jury that has been selected in an arbitrary and discriminatory manner contrary to federal constitutional and statutory requirements, and regardless of any showing of actual bias, petitioner had standing to attack the systematic exclusion of Negroes from grand jury and petit jury service. Pp. 496-505.

MR. JUSTICE WHITE, joined by MR. JUSTICE BRENNAN and MR. JUSTICE POWELL, would implement the longstanding and strong policy of 18 U.S.C. § 243 against excluding qualified jurors on account of race by permitting petitioner to challenge his conviction on the ground that Negroes were arbitrarily excluded from the grand jury that indicted him. Hill v. Texas, 316 U.S. 400. Pp. 505-507.

MARSHALL, J., announced the Court's judgment and delivered an opinion, in which DOUGLAS and STEWART, JJ., joined WHITE, J., filed an opinion concurring in the judgment, in which BRENNAN and POWELL, JJ., joined, post, p. 505. BURGER, C.J., filed. a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 507.

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MARSHALL, J., lead opinion

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).1 We granted certiorari. 404 U.S. 964 (1971). We reverse.

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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, [92 S.Ct. 2165] 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.2

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

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the petit jury.3 Consequently, the question whether jurors were in fact, excluded on the basis of race will be answered the same way for both tribunals. Second, both the grand jury and the petit jury in this case must be measured solely by the general Fourteenth Amendment guarantees of due process and equal protection, and not by the specific constitutional provisions for the grand jury and the petit jury. For the Fifth Amendment right to a grand jury does not apply in a state prosecution. Hurtado v. California, 110 U.S. 516 (1884). And the Sixth Amendment right to a petit jury, made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Duncan v. Louisiana, 391 U.S. 145 (1968), does not apply to state trials that took place before the decision in Duncan, as petitioner's trial did. De Stefano v. Woods, 392 U.S. 631 (1968). Accordingly, we turn now to the commands of equal protection and of due process.


This Court has never before considered a white defendant's challenge to the exclusion of Negroes from jury service.4 The essence of petitioner's claim is this:

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that the tribunals that indicted and convicted him were constituted in a manner that is prohibited by the Constitution and by statute; that the impact of that error on any individual trial is unascertainable; and that, consequently, any indictment or conviction returned by such tribunals must be set aside.5

There can be no doubt that, if petitioner's allegations are true, both tribunal involved in this case were illegally constituted. He alleges that Negroes were systematically excluded from both the [92 S.Ct. 2166] grand jury and the petit jury. This Court has repeatedly held that the Constitution prohibits such selection practices, with respect to the grad jury,6 the petit jury,7 or both.8 Moreover, Congress

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has made it a crime for a public official to exclude anyone from a grand or petit jury on the basis of race, 18 U.S.C. § 243, and this Court upheld the statute, approving the congressional determination that such exclusion would violate the express prohibitions of the Equal Protection Clause. Ex parte Virginia, 100 U.S. 339 (1880). The crime, and the unconstitutional state action, occur whether the defendant is white or Negro, whether he is acquitted or convicted. In short, when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim.

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 flows 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

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of view of the Negro defendant's right to equal protection of the laws. Strauder was part of a landmark trilogy of cases, in which this Court first dealt with the problem of racial discrimination in jury selection. In Strauder itself, a Negro defendant sought to remove his criminal trial to the federal courts, pursuant to statute, on the ground that Negroes were excluded by law from the grand and petit juries in the state courts; the Court upheld his claim. In Virginia v. Rives, 100 U.S. 313 (1880), [92 S.Ct. 2167] a Negro defendant sought removal on the ground that there were, in fact, no Negroes in the venire from which his jury was drawn; the Court held that, without more, his claim did not come within the precise terms of the removal statute. Finally, in Ex parte Virginia, 100 U.S. 339 (1880), a state judge challenged the statute under which he was convicted for the federal crime of excluding Negroes from state grand and petit juries; the Court upheld the statute as a valid means of enforcing the Equal Protection Clause. Because each of these three cases was amenable to decision on the narrow basis of an analysis of the Negro defendant's right to equal protection, the Court brought all three under that single analytical umbrella.

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.

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Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); White v. Crook, 251 F.Supp. 401 (MD Ala.1966).

Moreover, the Court has also recognized that the exclusion of a discernible class from...

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