443 U.S. 545 (1979)
In November 1972, James E. Mitchell and James Nichols, Jr., both Negroes, along with two other men, were jointly indicted by the grand jury of Tipton County, Tennessee, on two counts of first-degree murder arising from the shooting deaths of patrons during a robbery at White's Cafe.1
Prior to trial, the respondents filed a pro se motion in the nature of a plea in abatement. They sought dismissal of the indictment on the grounds that the grand jury array and the foreman had been selected in a racially discriminatory fashion.2 The trial court appointed counsel and conducted an evidentiary hearing. Testimony was taken from the three Tipton County jury commissioners, two former grand jury foremen, the foreman of the indicting grand jury, and eleven of the twelve other members of that grand jury. The court clerk testified for the State.3
At the close of the evidence the court denied the motion without comment.4 After denial of the motion the respondents were tried jointly to a jury. A verdict of guilty of first-degree murder on each count was returned. They received consecutive sentences of sixty years with credit for time spent in jail awaiting trial.5
The Court of Criminal Appeals of Tennessee affirmed the convictions. It found that the facts did not demonstrate a systematic exclusion of Negroes upon racial grounds. The Supreme Court of Tennessee denied certiorari.6 Each respondent then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee. They renewed the allegation of discrimination in the selection of the Tipton County grand jury and its foreman.7
The District Court referred the petitions to a magistrate. After reviewing the evidence introduced in the state court at the hearing on the plea in abatement and studying the method of selection, the magistrate recommended that the court hold an evidentiary hearing on the grand jury and jury foreman selection issues.8 The District Court disagreed with the magistrate as to the grand jury. It concluded that the state judge had ruled correctly on that issue.9 On the foreman question, the District Court went along with the magistrate and ordered the State to make further response.10 The State then submitted affidavits from the acting foreman of the grand jury that indicted respondents and from the state trial judge who appointed the foreman.11 On the basis of these affidavits, the petitions were ordered dismissed.12 The District Judge granted the certificate of probable cause required by Fed. Rule App. Proc. 22(b). Respondents appealed to the United States Court of Appeals for the Sixth Circuit.13
The Court of Appeals for the Sixth Circuit reversed. It deemed it unnecessary to resolve respondents' contentions concerning discrimination in the selection of the grand jury venire. It found sufficient grounds to reverse with respect to the selection of the foreman.14 It remanded with instructions for entry of an order setting aside the murder convictions and requiring reindictment within sixty days or release.15 The Supreme Court granted certiorari to consider the foreman issue.16
Whether claims of racial discrimination in the selection of a grand jury foreman should be considered on federal habeas corpus review of a state conviction when the defendant was found guilty by a properly constituted petit jury?17
For nearly a century, this Court in an unbroken line of cases has held that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race.18
Yes. The established facts show that respondents Mitchell and Nichols, both Negroes, were indicted in November 1972 by the Tipton County grand jury on first-degree murder charges after filing a pro se plea in abatement alleging racial discrimination in selection of the grand jury array and foreman.19 The trial court denied the motion after an evidentiary hearing.20 The respondents were convicted by a petit jury and sentenced to consecutive sixty-year terms.21 State appellate courts affirmed.22 The federal district court dismissed their habeas petitions.23 The Court of Appeals reversed on the foreman issue.24 The Supreme Court granted certiorari.25
Such claims remain cognizable on federal habeas corpus review even after conviction by a properly constituted petit jury because discrimination in grand jury selection strikes at fundamental values of the judicial system and society as a whole and reversal does not render a defendant immune from subsequent prosecution under a proper indictment.26
Claims of racial discrimination in the selection of a grand jury foreman remain cognizable on federal habeas corpus review of a state conviction even when the defendant was found guilty beyond a reasonable doubt by a properly constituted petit jury.27
Related opinions on this issue
Justice Stewart concurs in the judgment only. He would hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction. A grand jury proceeding is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.28
It is not a proceeding in which the guilt or innocence of a defendant is determined, but merely one to decide whether there is a prima facie case against him.29 Any possible prejudice to the defendant resulting from an indictment returned by an invalid grand jury thus disappears when a constitutionally valid trial jury later finds him guilty beyond a reasonable doubt.30 A convicted defendant who alleges that he was indicted by a discriminatorily selected grand jury is complaining of an antecedent constitutional violation that could have had no conceivable impact on the fairness of the trial that resulted in his conviction.31
Justice Rehnquist fully agrees with and has joined the separate opinions of Justices Stewart and Powell concurring in the judgment.32 For the separate reasons they state, neither would reach the merits of the claim of grand jury discrimination which the Court decides.33 Since a majority of the Court rejects these views, he joins Parts I, III, and IV of the Court's opinion.34
He concurs in the judgment for those reasons.
Whether such claims of grand jury discrimination are cognizable on federal habeas corpus in light of Stone v. Powell?35
A claim of discrimination in the selection of the grand jury differs so fundamentally from application on habeas of the Fourth Amendment exclusionary rule that the reasoning of Stone v. Powell should not be extended to foreclose habeas review of such claims in federal court.36
Yes. The established facts demonstrate that respondents renewed their allegation of discrimination in the selection of the Tipton County grand jury and its foreman in their federal habeas petitions after the state courts denied relief.37 The district court dismissed the petitions after receiving additional affidavits.38 The Court of Appeals reversed on the foreman issue. The Supreme Court holds that Stone v. Powell does not bar review because claims that the state judiciary itself has purposely violated the Equal Protection Clause differ from Fourth Amendment exclusionary rule claims.39
Federal review is necessary to ensure constitutional defects in grand jury selection procedures are not overlooked by the very state judges who operate that system.40 The constitutional interests vindicated are substantially more compelling than those at issue in Stone.41
Claims of grand jury discrimination remain cognizable on federal habeas corpus and Stone v. Powell does not foreclose such review.42
Related opinions on this issue
Joined by The Chief Justice And Mr. Justice Rehnquist
Justice Powell dissents from the extension of habeas review.43 He would extend the rationale of Stone v. Powell to foreclose federal habeas corpus relief for claims of grand jury discrimination.44 Such a claim goes only to the moot determination by the grand jury that there was sufficient cause to proceed to trial and not to any flaw in the trial itself.45
The incremental benefit of extending habeas corpus as a means of correcting unconstitutional grand jury selection procedures might be viewed as outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.46 The right not to be indicted by a discriminatorily selected grand jury, like the right not to have improperly obtained but highly probative evidence introduced at trial, has nothing to do with the guilt or innocence of the prisoner.47 Finding no support in prior decisions for the extension of habeas corpus, he notes that the Court overstates the differences between Stone and the present case.
Whether the evidence presented by the respondents established a prima facie case of racial discrimination in the selection of the grand jury foreman under the standards set forth in Castaneda v. Partida?48
In order to show that an equal protection violation has occurred in the context of grand jury foreman 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.49
No. The established facts show that respondents called the three white jury commissioners who testified only as to the venire.50 They called two former foremen and the current foreman who testified they had no knowledge of any black foreman.51 They called eleven grand jurors who testified nothing about foreman selection or race of past foremen.52 The state called only the court clerk and later submitted the trial judge's affidavit stating he had never given thought to appointing a black foreman.53
This evidence covered only portions of the 1951-1973 period.54 It provided no positive testimony that no Negro had ever served.55 It offered no evidence as to the total number of foremen appointed during the critical period.56 This made it impossible to perform the calculations needed under the rule of exclusion to conclude that a statistical case of discrimination had been made out, in contrast to cases such as Norris v. Alabama where witnesses with long tenure and access to records testified directly that no Negro had ever served.57
The evidence presented by the respondents failed to establish a prima facie case of racial discrimination in the selection of the grand jury foreman under the standards set forth in Castaneda v. Partida.58
Related opinions on this issue
Joined by Justice Stevens
Justice White dissents from Parts III and IV and from the judgment.59 He would hold that a prima facie case of purposeful discrimination was made out and was not rebutted by the State.60 On the basis of the evidence presented at the evidentiary hearing in state court, the District Court concluded that respondents appeared to have made out a prima facie case of discrimination in the selection of the foreman.61
The Court of Appeals agreed that a prima facie case was shown, interpreting the record testimony to the effect that the recollections of those testifying were that there had never been a black foreman in Tipton County. The selection of a foreman is left to the complete discretion of a single judge, creating obvious potentialities for abuse.62 The particular judge who chose the foreman had never chosen a black in any of the five counties for which he appointed foremen over a six-year period and admitted he had never even considered appointing a black foreman.
These facts raise a strong inference of intentional racial discrimination, shifting the burden to the State, which was not met by the judge's self-serving statement that he had nothing against appointing blacks.63
Justice Stevens joins the dissent of Justice White from Parts III and IV.64 By joining Part II of the Court's opinion he does not necessarily indicate that he would have rejected the arguments set forth in Mr. Justice Jackson's dissenting opinion in Cassell v. Texas if he had been a Member of the Court when the issue was first addressed. But there is surely enough force to the reasoning requiring adherence to a course of decision that has been consistently followed by this Court since 1880.
The stare decisis considerations that weigh heavily in his decision to join Part II of the Court's opinion also support Justice White's opinion dissenting from Parts III and IV.65 Accordingly, he joins that dissent.66