Racial Discrimination in Grand Jury Selection Voids Conviction
VASQUEZ v. HILLERY, Supreme Court of the United States (1986), 474 U.S. 254, 88 L.Ed.2d 598
FACTS:
In 1962, the King's County, California grand jury indicted defendant-respondent Hillery for murder. In a pretrial motion, defendant-respondent requested that the indictment be quashed on the ground that the grand jury which indicted him had been selected in a fashion which systematically excluded black citizens from participation. Following the trial court's refusal to quash the indictment, the trial court convicted defendant.
For the next sixteen years, Hillery unsuccessfully pursued every possible legal remedy to have his murder conviction overturned. A month following the final California Supreme Court decision, he filed a federal habeas corpus petition in federal court. The district court held that Hillery had established the existence of racial discrimination in the selection of the grand jury and granted the writ. The Court of Appeals affirmed the decision of the district court and the Supreme Court of the United States granted certiorari. The prosecution contended that the Court abandon the rule which requires the reversal of any conviction of a defendant indicted by a grand jury from which members of his own race have been systematically excluded by the government.
PROCEDURAL QUESTION:
Where a defendant alleges and proves the existence of racial discrimination in the selection of the grand jury, is any conviction which results from a trial on the merits of the case void?
HELD: Yes.
RATIONALE:
III
On the merits, petitioner urges this Court to find that discrimination in the grand jury amounted to harmless error in this case, claiming that the evidence against respondent was overwhelming and that discrimination no longer infects the selection of grand juries in Kings County. Respondent's conviction after a fair trial, we are told, purged any taint attributable to the indictment process. Our acceptance of this theory would require abandonment of more than a century of consistent precedent.
In 1880, this Court reversed a state conviction on the ground that the indictment charging the offense had been issued by a grand jury from which blacks had been excluded. We reasoned that deliberate exclusion of blacks "is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Strauder v. West Virginia, 10 Otto 303, 308, 100 U.S. 303, 308, 25 L.Ed. 664 (1880).
Thereafter, the Court has repeatedly rejected all arguments that a conviction may stand despite racial discrimination in the selection of the grand jury. [Citations omitted.] Only six years ago, the Court explicitly addressed the question of whether this unbroken line of case law should be
reconsidered in favor of a harmless-error standard, and determined that it should not. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979).
We reaffirmed our conviction that discrimination on the basis of race in the selection of grand jurors "strikes at the fundamental values of our judicial system and our society as a whole," and that the criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded. Id., at 556, 99 S.Ct. at 3000.
Petitioner argues here that requiring a State to retry a defendant, sometimes years later, imposes on it an unduly harsh penalty for a constitutional defect bearing no relation to the fundamental fairness of the trial. Yet intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century- the only effective remedy for this violation- is not disproportionate to the evil that it seeks to deter. If grand jury discrimination becomes a thing of the past, no conviction will ever again be lost on account of it.
Nor are we persuaded that discrimination in the grand jury has no effect on the fairness of the criminal trials that result from that grand jury's actions. The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense-- all on the basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained." United States v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J., dissenting). Thus, even if a grand jury's determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.
When constitutional error calls into question the objectivity of those charged with bringing a defendant to judgment, a reviewing court can neither indulge a presumption of regularity nor evaluate the resulting harm Accordingly, when the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from review, and we must presume that the process was impaired See Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927) (reversal required when judge has financial interest in conviction, despite lack of indication that bias influenced decisions). Similarly, when a petit jury has been selected upon improper criteria or has been exposed to prejudicial publicity, we have required reversal of the conviction because the effect of the violation cannot be ascertained. See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (per curiam); Sheppard v. Maxwell, 384 U.S. 333, 351-352, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966). Like these fundamental flaws, which never have been thought harmless, discrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.
Just as a conviction is void under the Equal Protection Clause if the prosecutor deliberately charged the defendant on account of his race, see United States v. Batchelder, 442 U.S. 114, 125, and n. 9, 99 S.Ct. 2198, 2205, n. 9, 60 L.Ed.2d 755 (1979), a conviction cannot be understood to cure the taint attributable to a charging body selected on the basis of race. Once having found discrimination in the selection of a grand jury, we simply cannot know that the need to indict would have been assessed in the same way by a grand jury properly constituted. The overriding imperative to eliminate this systemic flaw in the charging process, as well as the difficulty of assessing its effect on any given defendant, requires our continued adherence to a rule of mandatory reversal.
The opinion of the Court in Mitchell ably presented other justifications, based on the necessity for vindicating Fourteenth Amendment rights, supporting a policy of automatic reversal in cases of grand jury discrimination. That analysis persuasively demonstrated that the justifications retain their validity in modern times, for "114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole." 443 U.S., at 558-559, 99 S.Ct. at 3001. The six years since Mitchell have given us no reason to doubt the continuing truth of that observation.
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The judgment of the Court of Appeals, accordingly, is affirmed.
Notes
1. Booker T. Hillery did not challenge the fairness of the actual trial at any time. Is it possible that, although racial discrimination existed at the grand jury stage, the defendant-respondent in Hillery received a fair trial on the merits and his conviction should be upheld? Would a fair trial "cure" any discrimination which occurred at the grand jury stage of the prosecution?
2. Would you answer to whether Hillery's conviction should have been reversed turn on whether the state has sufficient evidence to reindict him and try him again? Would it matter if a grand jury which mirrored the local population at the time of indictment would have had only one black member? The odds of a random drawing could have resulted in no black individual sitting on the grand jury in any event.
3. Could racial discrimination, which admittedly occurred here, have been merely "harmless error" which did not affect the outcome of the murder trial? The majority opinion by Justice Marshall noted that, "Once having found discrimination in the selection of a grand jury, we simply cannot know that the need to indict would have been assessed in the same way by a grand jury properly constituted." Do you think he was correct? Why or why not?
4. In Campbell v. Louisiana, a white man desired to allege racial discrimination in the selection of the grand jury in his case. He was able to prove that no black person had ever been selected as a grand jury foreman in the past 16.5 years. As you read through this syllabus from the Court, consider why a white man has any complaint in this context.
No. 96-1584 (1998)
___ U.S. ___
[U.S. Reports citation not yet available]
CERTIORARI TO THE COURT OF APPEAL OF
LOUISIANA, THIRD CIRCUIT
Syllabus
A grand jury in Evangeline Parish, Louisiana, indicted petitioner Campbell for second-degree murder. In light of evidence that, for the prior 16 1/2 years, no black person had served as grand jury foreperson in the Parish even though more than 20 percent of the registered voters were black, Campbell filed a motion to quash the indictment on the ground that his grand jury was constituted in violation of his Fourteenth Amendment equal protection and due process rights and the Sixth Amendment's fair cross-section requirement. The trial judge denied the motion because Campbell, a white man accused of killing another white man, lacked standing to complain about the exclusion of black persons from serving as forepersons. He was convicted, but the Louisiana Court of Appeal ordered an evidentiary hearing, holding that Campbell could object to the alleged discrimination under the holding in Powers v. Ohio, 499 U.S. 400, that a white defendant had standing to challenge racial discrimination against black persons in the use of peremptory challenges. In reversing, the State Supreme Court declined to extend Powers to a claim such as Campbell's. It also found that he was not afforded standing to raise a due process objection by Hobby v. United States, 468 U.S. 339, in which the Court held that no relief could be granted to a white defendant even if his due process rights had been violated by discrimination in the selection of a federal grand jury foreperson whose duties were purely "ministerial." Noting that the Louisiana foreperson's role was similarly ministerial, the court held that any discrimination had little, if any, effect on Campbell's due process right of fundamental fairness.
Held:
1. A white criminal defendant has the requisite standing to raise equal protection and due process objections to discrimination against black persons in the selection of grand jurors. Pp. ___.
(a) This case must be treated as one alleging discriminatory selection of grand jurors, not just of a grand jury foreperson. In the federal system and in most States using grand juries, the foreperson is selected from the ranks of the already seated jurors. In Louisiana, by contrast, the judge selects the foreperson from the grand jury venire before the remaining members are chosen by lot. In addition to his other duties, the Louisiana foreperson has the same full voting powers as other grand jury members. As a result, when the Louisiana judge selected the foreperson, he also selected one member of the grand jury outside of the drawing system used to compose the balance of that body. Pp. ___.
(b) Campbell, like any other white defendant, has standing under Powers, supra, to raise an equal protection challenge to the discriminatory selection of his grand jury. The excluded jurors' own right not to be discriminatorily denied grand jury service can be asserted by Campbell because he satisfies the three preconditions for third-party standing outlined in Powers, supra, at 411. First, regardless of skin color, an accused suffers a significant "injury in fact" when the grand jury's composition is tainted by racial discrimination. The integrity of the body's decisions depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions. See Rose v. Mitchell, 433 U.S. 545, 555-556. The Court rejects the State's argument that no harm is inflicted when a single grand juror is selected based on racial prejudice because the discrimination is invisible to the grand jurors on that panel, and only becomes apparent when a pattern emerges over the course of years. This argument underestimates the seriousness of the allegations here: if they are true, the impartiality and discretion of the judge himself would be called into question. Second, Campbell has a "close relationship" to the excluded jurors, who share with him a common interest in eradicating discrimination from the grand jury selection process, and a vital interest in asserting their rights because his conviction may be overturned as a result. See, e.g., Powers, 499 U.S. at 413-414. The State's argument that Campbell has but a tenuous connection to jurors excluded in the past confuses his underlying claim -- that black persons were excluded from his grand jury -- with the evidence needed to prove it -- that similarly situated venirepersons were excluded in previous cases on account of intentional discrimination. Third, given the economic burdens of litigation and the small financial reward available, a grand juror excluded because of race has little incentive to sue to vindicate his own rights. See id. at 415. Pp. ___.
(c) A white defendant alleging discriminatory selection of grand jurors has standing to litigate whether his conviction was procured by means or procedures which contravene due process. Hobby, supra, at 350, proceeded on the implied assumption that such standing exists. The Louisiana Supreme Court's reading of Hobby as foreclosing Campbell's standing is inconsistent with that implicit assumption and with the Court's explicit reasoning in Hobby. Campbell's challenge is different in kind and degree from the one there at issue, because it implicates the impermissible appointment of a member of the grand jury. What concerns Campbell is not the foreperson's performance of his ministerial duty to preside, but his performance as a grand juror -- namely voting to charge Campbell with second-degree murder. The significance of this distinction was acknowledged in Hobby, supra, at 348. By its own terms, then, Hobby does not address a claim like Campbell's. Pp. ___.
2. The Court declines to address whether Campbell also has standing to raise a fair cross-section claim. Neither of the Louisiana appellate courts discussed this contention, and Campbell has made no effort to meet his burden of showing the issue was properly presented to those courts. See Adams v. Robertson, 520 U.S. ___, ___ (per curiam). P. ___.
673 So.2d 1061 reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court with respect to Parts I, II, IV, and V, and the opinion of the Court with respect to Part III, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined.
The problems of racial and other discrimination have arisen in the grand jury context but also in the selection of the trial jury. Consult the lesson, later in the course, on jury trials.
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LINEUPS AND IDENTIFICATION PROCEDURES: Due Process and Other Considerations
Lineups and Identification Procedures
Proper identification of criminal suspects involves an inquiry concerning whether the suspect possesses a right to counsel and whether the identification procedure meets the standards of due process. Although the identification of a suspect may be one step toward a conviction, the privilege against self-incrimination has been held not to be implicated when a witness views a suspect. Identification procedures include showing a suspect to a victim [process often called a "show up"], or permitting a victim to walk past a suspect, having a witness look through "mug" snapshots of past criminals, conducting a photographic array of criminals, or placing the suspect in an in-person lineup at a police station or other appropriate location. While court decisions require counsel at all "critical stages" of the criminal justice process where substantial rights of an accused may be compromised, many identifications occur without the presence of counsel, but with court approval.
Right to Counsel
When law enforcement agents conduct pretrial identification procedures, court decisions have held that a suspect may be entitled to the Sixth Amendment right to the presence of legal counsel. The most clear-cut situation where the right to counsel exists occurs when there is a post-indictment or post-information in-person lineup. According to the court in United States v. Wade, 388 U.S. 218 (1967), Next Lesson, when an arrestee has been formally charged with a crime, an in-person lineup constitutes a critical stage of the criminal justice process during which the suspect has a constitutional right to the assistance of counsel. The Court noted that in many cases the identification of a suspect as the guilty party may effectively conclude the case. Once an eyewitness has selected a particular person as the guilty party, the eyewitness is unlikely to recant the identification at a later time.
According to the Wade Court, a major factor in the miscarriage of justice has traditionally been the degree of suggestion inherent in the manner in which the government presents the arrestee to the witness for the purpose of identification. Writing for the majority, Justice Brennan cited cases of questionable identification procedures in which one suspect had been identified by a witness where the suspect was the only person of Oriental heritage in the lineup, a case where a tall suspect had been placed with short lineup participants, and where a young suspect had been placed in a lineup array with older men. Suggestive identification procedures create the potential for impermissibly "steering" eyewitnesses toward identifying a particular suspect, producing a due process violation.
The Wade case determined that the Sixth Amendment right to counsel extends to a person under an indictment or otherwise formally charged with a criminal offense who is placed in an in-person lineup. An attorney may offer corrective suggestions concerning lineup procedures which will assist the police in
conducting a proper identification. Naturally, law enforcement personnel have no interest in identifying the wrong person and should be cooperative with an arrestee's counsel. In the absence of counsel, a variety of wrongs could occur and the suspect would be powerless to contest their occurrence even if the arrestee became aware of them. Witnesses may be unaware of subtle "steering" in the making of an identification and the suspect would be completely ignorant of undue suggestiveness. Other lineup participants possess no particular interest in protesting an improper lineup since they are not targets of the identification procedure. Thus, where a suspect is represented by counsel and errors in procedure appear about to develop, the attorney may request that corrective measures be taken prior to the occurrence of irreparable misidentification.
The Sixth Amendment right to counsel during the identification process has not been applied in every conceivable context. In Kirby v. Illinois, 406 U.S. 682 (1972), the Court required that formal adversarial proceedings have been initiated before the right to counsel matures at an identification procedure. The defendants in Kirby had been arrested but had not been formally charged. The police permitted the victim of a robbery to enter a room and make an identification by merely observing the defendants. According to the Court, Kirby and his companion had no right to counsel for purposes of identification, since they had been neither indicted, nor had an information filed against them, and were not being arraigned or subjected to a preliminary hearing and were not facing a clear decision to prosecute them.
The use of a still photographic array for identification purposes, even where the subject has been indicted or a prosecution has otherwise been initiated, does not require the presence of counsel according to United States v. Ash, 413 U.S. 300 (1973). In a pretrial context, the attorney's role is to assist the defendant in dealing with legal questions and to suggest solutions where unfair practices or conditions appear. Since a photographic array does not involve an actual defendant-victim/witness confrontation similar to a trial, the assistance of an attorney is not constitutionally mandated. However, the potential for impermissible "steering," suggestive photograph selection, or the repeated presence of only the suspect's picture in a series of photographic arrays remains a potential problem for an accused.
Suggestiveness of Identification
Exigent or emergency circumstances permit identification by witnesses where practical necessities dictate the rapid use of creative identification procedures. In Stoval v. Denno, 388 U.S. 293 (1967), police brought an arrested homicide suspect to the hospital bedside of a victim whose health was in a precarious state. The victim was permitted to identify the unrepresented suspect as the killer of her husband, despite the suggestiveness inherent in the encounter. According to the Court such practice was appropriate under the circumstances of the case- a sole suspect and a critically injured victim of a violent crime. The teaching of Stoval illustrates that there are identifications in which counsel need not be present and the use of a formal lineup is not required so long as there is little chance of irreparable misidentification of the suspect.
Whether or not counsel is required, the identification process must produce reliable and reasonably accurate identification. In an effort to determine the appropriate standard, the Court clarified Stoval by adopting a more specific test in Neil v. Biggers, 409 U.S. 188 (1972), Next Lesson. In developing the "totality of the circumstances" test, the Court listed five factors as a guideline to measure whether a particular identification process comports with due process and eliminates any significant chance of irreparable misidentification. When considering a claim involving an alleged improper identification, courts must consider the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' original description of the criminal, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time which passed between the crime scene identification and the confrontation. A proper analysis by a trial court of these factors, called the "totality of the circumstances test," should result in only proper eyewitness identifications being admitted in trial courts.
The Neil Court approved the courtroom use of eyewitness identification of the suspect event though he was not represented by counsel at the time of his identification. Consistent with Kirby, since the suspect had not been formally charged with a crime, he did not possess the right to counsel at the time of his identification by the victim.
The Neil eyewitness identification test may be applied to virtually any type of identification process, from an in-person lineup to the use of a photographic array lineup. An interesting and somewhat suggestive procedure occurred in Manson v. Brathwaite, 432 U.S. 98, (1977), Next Lesson, where a trained police officer observed a drug dealer during an undercover narcotics purchase. Subsequently, the officer described the suspected drug dealer to a fellow officer in such detail that the fellow officer believed that he knew the identity of the suspect. The second officer obtained a photograph of the suspected drug dealer and placed it on the original officer's desk. When the undercover officer looked at the photograph, he instantly recognized the drug suspect. At the time of the viewing of the photograph, the suspect did not have counsel and was not under arrest.
The Supreme Court upheld the identification of Brathwaite by the undercover officer by using the five factors test of Neil v. Biggers and the Court concluded that, under the circumstances, such a procedure did not violate due process. The officer had been trained in observation of suspects, especially details relating to identification. He had a fairly clear view of the suspect and little time had transpired between the original view and the identification. The officer was sure of his identification and the suspect description matched the description originally offered by the officer.
Use of Identification at Trial
Where the identification meets constitutional standards, the eyewitness may offer identification evidence from the witness stand. In the event that problems such as a failure to provide counsel at a post-indictment lineup or where undue suggestiveness transpired during a lineup, the witness may be prevented from making an in-court identification. At a minimum, the witness will be prohibited from making any mention of the improper lineup. If improper suggestiveness or other illegal procedure occurred, courts are required to determine whether the witness is testifying from the original observation, not bolstered by the illegal observation at the lineup. If the court determines that the identification proffered by the witness has been influenced or tainted by the illegal procedure, the witness' testimony relative to identity must be excluded. Under the circumstances, the level of certainty of the witness may have been buttressed by suggestion or repeatedly seeing the suspect in successive lineups to the point that the witness may actually be offering testimony, not from the crime scene identification, but from the lineup itself.
Generally, the prosecution is permitted to attempt to establish by clear and convincing evidence that the eyewitness identification was based on observations of the defendant at other locations and not based primarily on an illegal lineup identification. The government must prove that the witness' memory has not been tainted by an illegal lineup and stems from appropriate observations. If the prosecution meets the burden of proof, the witness is permitted to offer evidence concerning identity. See United States v. Wade, 388 U.S. 218 (1967), Next Lesson.
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