# Peters v. Kiff/Dissent Burger

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Burger
[p507] MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.
There is no longer any question, of course, that persons may not be excluded from juries on account of race. Such exclusions are plainly unlawful and deserving of condemnation. That, however, is not the issue before us. The real issue is whether such illegality necessarily voids a criminal conviction, absent any demonstration of prejudice, or basis for presuming prejudice, to the accused.
Petitioner was indicted for the offense of burglary on June 6, 1966, and thereafter convicted. The conviction was reversed on direct appeal, and the case was remanded for a new trial. Petitioner was retried on December 8, 1966, was found guilty, and was sentenced to 10 years' imprisonment. Petitioner is not a Negro and the record in no way suggests that race was relevant in the proceedings against him. At trial, petitioner made no challenge to the method of selection of the grand and petit juries, and he made no challenge to the array of the petit jury. In his appeal to the Court of Appeals of Georgia, petitioner still made no claim addressed to the method of selection of the grand and petit juries. His conviction was affirmed.
[p508] Seven months after his trial, petitioner filed a writ of habeas corpus in the United States District Court, asserting for the first time that Negroes were systematically excluded from the grand and petit juries. If petitioner's allegations are true, then the officials responsible for the jury selection acted in violation of the Constitution, denying potential Negro jurors the equal opportunity to participate in the administration of justice. Strauder v. West Virginia, 100 U.S. 303, 308 (1880). Moreover, if petitioner's allegations are true, the responsible officials are subject to criminal penalties. 18 U.S.C. § 243. However, in order for petitioner's conviction to be set aside, it is not enough to show merely that there has been some unconstitutional or unlawful action at the trial level. It must be established that petitioner's conviction has resulted from the denial of federally secured rights properly asserted by him. See Alderman v. United States, 394 U.S. 165, 171-174 (1969); cf. Jones v. United States, 362 U.S. 257, 261 (1960).
The opinions in support of the majority position do not hold that if petitioner's allegations are true, he has been denied the equal protection of the laws. The Court has held in a long line of cases that a Negro defendant is denied equal protection by the systematic exclusion of Negroes from jury service. See, e.g., Whitus v. Georgia, 385 U.S. 545 (1967); Avery v. Georgia, 345 U.S. 559 (1953); Norris v. Alabama, 294 U.S. 587 (1935); Carter v. Texas, 177 U.S. 442 (1900); Strauder v. West Virginia, 100 U.S. 303 (1880). These decisions have been predicated from the beginning on the judicially noticeable fact "that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy." [p509] Strauder v. West Virginia, supra, at 309. See also Gibson v. Mississippi, 162 U.S. 565, 581 (1896); Bush v. Kentucky, 107 U.S. 110, 117 (1883); Neal v. Delaware, 103 U.S. 370, 386 (1881); Ex parte Virginia, 100 U.S. 339, 345 (1880). This presumption of prejudice derives from the fact that the defendant is a member of the excluded class, but the Court has never intimated that a defendant is the victim of unconstitutional discrimination if he does not claim that members of his own race have been excluded. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
While the opinion of MR. JUSTICE MARSHALL refrains from relying on the Equal Protection Clause, it concludes that if petitioner's allegations are true, he has been denied due process of law. The opinion seeks to equate petitioner's position with that of a defendant who has been tried before a biased tribunal or one lacking the indicia of impartiality. It has been held that an accused is denied due process if the trier of fact is mentally incompetent, Jordan v. Massachusetts, 225 U.S. 167 (1912), has a personal interest in the outcome of the proceedings, Tumey v. Ohio, 273 U.S. 510 (1927), has been subjected to pressures making a dispassionate decision unlikely, Irvin v. Dowd, 366 U.S. 717 (1961), Moore v. Dempsey, 261 U.S. 86 (1923), cf. Turner v. Louisiana, 379 U.S. 466 (1965), or has had direct personal involvement with the events underlying a criminal contempt charge. Mayberry v. Pennsylvania, 400 U.S. 455 (1971); In re Murchison, 349 U.S. 133 (1955). This case plainly falls in none of those categories.
Although the prior cases have not required a showing that the trier of fact was actually affected by prejudice in its deliberations, in every case the circumstances were such as to create a serious "probability of unfairness." In re Murchison, 349 U.S., at 136. Recognizing this limitation, the Court in Witherspoon v. Illinois, [p510] 391 U.S. 510 (1968), found no denial of due process where the determination of guilt had been entrusted to a jury from which persons opposed to the death penalty had been excluded. The Court rejected as "tentative and fragmentary" scientific evidence tending to show "that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt." 391 U.S., at 517. The Court went on to state,
   "We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was." 391 U.S., at 517-518.
See also Fay v. New York, 332 U.S. 261, 280-281 (1947). Here three members of the Court would establish such a per se rule without the benefit of tentative, fragmentary, or any other kind of empirical data indicating that all-white juries tend to be prejudiced against white defendants in nonracial criminal proceedings.
The opinion of MR. JUSTICE MARSHALL seeks to magnify this wholly speculative likelihood of prejudice by noting that the effect of excluding "any large and identifiable segment of the community... 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," and "that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented." Ante, at 503-504. I completely agree that juries should not be deprived of the insights of the various [p511] segments of the community, for the "common-sense judgment of a jury," referred to in Duncan v. Louisiana, 391 U.S. 145, 156 (1968), is surely enriched when all voices can be heard. But we are not here concerned with the essential attributes of trial by jury. In fact, since petitioner was tried two years before this Court's decision in Duncan, there was no constitutional requirement that he be tried before a jury at all. DeStefano v. Woods, 392 U.S. 631 (1968). Had the State of Georgia proceeded to try petitioner before a judge, I assume the Court would not find it a denial of due process if the judge were not the embodiment of all the "qualities of human nature and varieties of human experience." I do not mean to minimize the importance of these values, but they really have very little to do with the narrow question whether petitioner was convicted by a prejudiced tribunal.
Nor do I believe that the illegality of the alleged exclusion can be viewed as tipping the scales toward finding a denial of due process. The question of a jury's bias or prejudice is totally factual in nature. If the possibility of prejudice is too remote or speculative to support a finding of unconstitutionality, a different result cannot be justified by relying on the element of illegality. The constitutional and statutory prohibition against such conduct is extraneous to the due process question, for it in no way renders the possibility of prejudice less remote or less speculative. If this were a borderline case on the facts, it might conceivably be appropriate to resolve the doubt against the State due to its complicity in the alleged unlawful discrimination. But, judging from all existing authority, this is not a close case at all.
The opinion of MR. JUSTICE WHITE concurring in the judgment, as I read it, rests on the statutory prohibition against racially exclusive juries found in 18 U.S.C. § 243. The opinion draws on dictum in Hill v. Texas, 316 U.S. 400, 404 (1942), a case involving a Negro defendant, as expressing the "better view" that § 243 invalidates the conviction of any man tried before a jury from which persons have been excluding on account of race.
A closer look at the statute is warranted. From all indications, § 243 was intended to serve two purposes: first, to make explicit what was implicit in the Fourteenth Amendment, that persons cannot be denied the right to serve on juries because of their race; and second, to prevent racial exclusions from juries by providing criminal penalties for persons violating the statutory command. See Ex parte Virginia, 100 U.S. 339 (1880); Neal v. Delaware, 103 U.S. 370, 386 (1881). Insofar as the statute is declarative of rights secured by the Equal Protection Clause, it provides no authority for reaching a result that the Constitution itself does not require. No case has ever held that § 243 confers extra-constitutional rights on criminal defendants, and there is no support for the view that Congress intended to confer such rights when it enacted this legislation in 1875.
The opinion concurring in the judgment suggests that an expansive reading of § 243 is appropriate to "implement the strong statutory policy" against the exclusion [p513] of persons from jury service on the basis of race. Under this interpretation, the statute is viewed not so much as safeguarding the rights of the white defendant, but as providing a prophylaxis against discriminatory action in all cases, regardless of any harm that might befall the accused. While Congress surely had the power to implement the policies of the Fourteenth Amendment in this manner, it chose instead to deter such violations of the Fourteenth Amendment by imposing criminal sanctions. It has been apparent, at least until recently, that such sanctions have not satisfactorily served to deter. But it is not for this Court to correct the inadequacies of a statutory enactment. Moreover, it does nothing to promote adherence to the policies of the Fourteenth Amendment to allow a criminal defendant who has made no objection at trial and who has no credible claim of personal prejudice to mount a post-conviction attack alleging that discriminatory jury selection has taken place inn the past.

## Notes

* ↑ The passage quoted from Hill v. Texas, supra, even if taken at face value, does not mandate reversal in this case. It is expressly limited to the case where "timely objection has laid bare a discrimination in the selection of grand jurors...." 316 U.S., at 406. As indicated earlier, petitioner first made his allegations seven months after his trial. Moreover, assuming, arguendo, that there is a statutory right not to be tried before a racially exclusive jury, it is not clear to me why petitioner's failure to raise the matter in the state courts should not preclude him from raising it on a federal habeas attack. The Court has spoken of a presumption against the waiver of fundamental, constitutional rights, see, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938), but has never intimated that a similar presumption should apply with respect to statutory rights.