The Grand Jury Selection & Prejudice

...Prior to the enactment of the Federal Jury Selection and Service Act of 1968, most juries were formed by the so-called "key-man" system: The clerk of the court or jury commissioner in a district or state would contact men of presumedly extensive community connections and request that they recommend prospective grand jurors...

...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...

...When he first went on the U.S...

...Justice White, stressed the importance of seeking a true cross section to the degree possible, casting a cloud over devices obstructing this effort...

...State authorities, with some doctrinal merit, protested that an indictment is, after all, only an accusation...

...on account of race, color, religion, sex, national origin or economic status...

...The case of the white defendant might then be thought to present a species of harmless error...

...Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial...

...If the subsequent trial is fair, and a fairly selected trial jury is convinced of guilt beyond a reasonable doubt, how is justice served by allowing the grand jury's composition to upset the conviction...

...Members of excluded groups, particularly blacks, have sued successfully to remove barriers to jury and grand jury service.15 But this public-spirited approach is less common, for obvious reasons, than the challenge from someone prosecuted or convicted by jurors who were selected in a discriminatory fashion...

...13 Only Mr...

...Unfazed by the concept of prophylaxis, he wrote: "[The majority] concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the 'jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool...

...The Chief Justice further complained that another plurality opinion, by Mr...

...This smacks more of mysticism than of law...

...Originally, his father's nomination was opposed by the liberal community because, like many Alabama politicians of his day, he had been a member of the Ku Klux Klan...

...Nevertheless, the Court has reasoned that it is impossible to confine so narrowly the deleterious effects that flow from discriminatory grand jury selection...

...In addition, the Court reasoned that discriminatory exclusion had a pervasive and devastating effect on the class of citizens barred from jury service, for it denied them a basic right of equal participation in the administration of justice...

...The Court's answer, as articulated in a number of cases, was substantially unanimous...

...To implement these salutary purposes, voter registration lists are the basic source from which jurors are drawn by chance...

...For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society...

...Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system...

...The issues have not always been neatly logical, but the moral stakes have been high and the cases have been bitterly fought...

...Moreover, we are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race...

...If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand...

...Grounds of discrimination against other groups were not explicit, in Latin or otherwise, but were no less prevalent...

...Of course, they acknowledged, they were inclined to select grand jurors from people they knew personally, and they hardly knew any non-whites...

...courts to employ a prophylactic device to achieve indirectly important ends that cannot be attained directly...

...Supreme Court they talked about him as a man who went around in a white robe scaring black people...

...The assumptions, by no means clearly expressed, seemed to include a recognition that a member of an oppressed race faced a greater chance than others of being indicted by a group composed exclusively of his oppressors...

...Justice Black was to bear from fellow Alabamians for opinions like that...

...11 It is a digression—but only a small and perhaps a bearable one —to note how much enmity Mr...

...This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool...

...The poor, the racially disfavored, the young, women, and others thought inferior were at best minimally represented...

...It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case...

...The commissioners solemnly swore they practiced no racial discrimination...

...Nonetheless, it closely approximates the rights to fair and random selection substantially enforced against the states by the Supreme Court in construing the requirement of equal protection under the Fourteenth Amendment...

...An almost unanimous Court used the word "prophylactic" in a different sense when it reversed the Louisiana man's conviction by an all-male jury...

...In the 1975 case mentioned earlier, it was a male defendant who succeeded in having his conviction reversed by the Supreme Court because Louisiana excused women from jury service unless they asked for it in writing...

...Defining Bias It is difficult to detect in most cases the kind of prejudice courts care about where a white male defendant is indicted or convicted by a group of white males...

...It said: "We accept the fair cross section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation...

...By analogy, therefore, the right of minorities to serve on (or be dealt with by) juries fairly selected is thought to be more effectively enforced when any affected person, even if not himself a target of the discrimination, may raise the question and make violations of the right costly for those in positions of authority...

...While not necessarily satisfying either politically or intellectually, it is not uncommon for U.S...

...Most notably, case after case revealed racial exclusions—especially of blacks from Southern grand juries...

...From the earliest days to very recently, in keeping with a frank and fairly open tendency toward elitism, grand jurors were selected by means guaranteed to produce discriminations...

...If we specify those qualifications, are we not likely to find them causes or pretexts for racial, class, sex, and other forms of prejudice...

...Among the most familiar (and still hotly debated) examples is the rule that evidence taken in an unconstitutional search may not be received in the trial of the person whose rights were violated...

...recounts how the whole family suffered from these recriminations...

...But it was not until the late '30s and the '40s that the promises of Federal law and the Constitution began to be kept...

...Justice Byron R. White, seemed to be based upon a theory that served to supply a kind of "prophylaxis against discriminatory action in all cases, regardless of any harm that might befall the accused...

...To answer the last question first, down to the present day our law books offer proof of a steady concern with the selection and makeup of both trial and grand juries...

...Sweeping these protestations aside, and reversing a black man's rape conviction, Mr...

...It was the defendant's right, the opinions said, not to have people of his race systematically excluded from either the body that accused him or the one that convicted him...

...In 1939, for example, it said it was not enough for the laws of Louisiana to proclaim that in selecting grand and petit juries "there shall be no distinction made on account of race, color, or previous condition [of servitude] . ." Where a defendant showed that in fact the procedures accomplished a substantially total exclusion of blacks from Louisiana grand juries, even though his trial jury was fairly selected, his murder conviction was reversed.10 A decision against Texas a year later stressed the Supreme Court's explicit resolve to deal with the realities...

...This situation will certainly bear scrutiny when it appears, but the body will be lawful if in fact it has been selected by methods that do not serve generally, and were not employed, to effect forbidden discriminations...

...Justice Thurgood Marshall wrote for a Court plurality: "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, then perhaps the right to challenge the tribunal on that ground could be similarly confined...

...For the handpicked grand jurors almost always came from the settled, relatively affluent, "respectable" segments of the community...

...But if grand juries are in the end merely rubber stamps for the prosecutor, do the above really matter to anyone...

...In his just published book, My Father: A Remembrance, Hugo Black Jr...

...Reversing the conviction of a white male in a case where blacks had been excluded from both the grand jury and the trial jury, Mr...

...Similarly, white defendants have been held entitled to complain—have been given "standing"—against systematic exclusion of blacks from serving on grand and trial juries...

...Grand juries in New York City, for instance, contained in far more than representative proportions people from the middle and upper ranks of Con Ed, the telephone company, the banks, brokerage houses, insurance companies, and corresponding establishments...

...The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge...

...Although the key-man system was never declared unconstitutional, as possibly it should have been, its results were repeatedly struck down as unacceptably discriminatory...

...Justice Rehnquist dissented...

...The best it can do is to posit 'a flavor, a distinct quality,' which allegedly is lost if either sex is excluded...

...Where the Federal courts are concerned, the Jury Selection and Service Act of 1968 proclaims "the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court con-ven»s...

...After the wheel had made its circle and the name Black had become hated in the Alabama Establishment, Hugo Jr...

...As a declared rule of law, the prohibition against racial discrimination in jury selection was made clear relatively soon after the Civil War...

...12 Dissenting, Chief Justice Warren Burger, together with Justices Harry A. Blackmun and William H. Rehnquist, objected on the ground, among others, that the white defendant had shown "no credible claim of personal prejudice" to him from the racially discriminatory jury selection...

...recalls introducing his father from time to time with these words: "Ladies and gentlemen, I give you Justice Black...

...In those years the High Court demonstrated its willingness to go behind state statutes guaranteeing fair jury selection and to scrutinize what was really happening...

...It may happen that a particular jury selected on any day in New York City will be all white, all black, all female, or all something else...

...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...

...The Texas system of selection, through white jury commissioners, produced grand juries almost 100 per cent white in Harris County, which was 20 per cent black...

...Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who know no Negroes as well as from commissioners who know but eliminate them...

...These jury suggestors were usually such knowledgeable and established local people as county clerks, postmasters, or school superintendents...

...The bitterness aroused by decisions that undid convictions for serious, often capital, crimes because back at the grand jury selection stage there had been racial discrimination naturally was not confined solely to Alabama...

...A Jury of Peers While it is unlikely that problems of discriminatory selection are all solved, the express commands of the law on the subject now seem clear and broadly undisputed...

...If grand juries are discriminatorily selected —all white or male or rich or respectable—will they not indict discriminatorily...

...In 1875, Congress enacted a civil rights law which provided that no citizen should be disqualified from jury service because of race, color or previous condition of servitude...

...The rationale relating to women, who were ineligible as jurors in England and most of this country until the 20th century, is explained by Black-stone in proper Latin under the doctrine of propter defectum sexus, "because of a defect of sex...

...The Supreme Court established before 1880 that the "equal protection of the laws" guaranteed by the Fourteenth Amendment forbade systematic exclusion of blacks from jury service...

...Of late, it has come to be held that even defendants not in the suffering group may invoke discriminatory selection to nullify convictions...

...The Act goes on to provide that "No citizen shall be excluded from service as a grand or petit juror...

...Being only a Federal statute, this law does not of its own force apply to state juries...

...The latest Supreme Court decision on jury composition, prohibiting Louisiana's practice of excusing women from jury duty unless they file a written request to serve, is dated January 21, 1975,9 and it surely does not mark the end...

...To this extent at least, as the law stands today, nobody is literally entitled to a jury or grand jury of his "peers," whatever that may mean...

...The opinion, written by Mr...

...Branding an entire group of Americans unfit for jury service was also seen as conveying an inescapable quality of bias, regardless of whether there was any, and therefore as undermining the integrity of the legal system...

...Assuming his peers have not been intentionally excluded, their absence does not invalidate the group chosen to serve...

...14 To be sure, the right to serve as a juror is also honored and enforced when someone is willing to take the trouble and expense to pursue it...

...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...

...In the search case, the evidence itself (the gun, the bloody shirt, whatever) is supposedly relevant and real, properly useful toward a just conviction...

...Now they talk about him as a man who goes about in a black robe scaring white people...

...Yet the exclusionary rule seeks to deter lawless searches, not for the benefit of this or that guilty party, but to help protect the rest of us against such intrusions...

...However, this 'flavor' is not of such importance that the Constitution is offended if any given petit jury is not so enriched...

...Justice Hugo L. Black wrote for a unanimous Court: "What the Fourteenth Amendment prohibits is racial discrimination in the selection of grand juries...

...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 perspective on human events that may have unsuspected importance in any case that may be presented...

...In the last analysis, this may well be a powerful justification for the decision the Chief Justice protested...

...None of this, it should be said, suggests that anyone has a right to a grand jury or petit jury comprising specific proportions of races, sexes or whatever...

...The Court does not even purport to practice its mysticism in a consistent fashion—presumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here...