469 U.S. 984 - Ford v. Kentucky

These conflicting pronouncements from the Court and our failure to speak definitively to the issue have spawned the sort of confusion in the lower courts that calls for the exercise of this Court's certiorari jurisdiction. In contrast to the views of the Kentucky Supreme Court, which are shared by the Supreme Court of Tennessee, see State v. Coe, 655 S.W.2d 903 (1983), at least two Federal Courts of Appeals have stated that a male defendant does have a due process right not to have women systematically underrepresented on the state grand jury that indicts him. Gibson v. Zant, 705 F.2d 1543 (CA11 1983); Folston v. Allsbrook, 691 F.2d 184, 186, n. 3 (CA4 1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 314 (1983). In addition to this conflict, and perhaps more importantly, I believe that certiorari is warranted because the decision below, as well as the statements of my colleagues that would support it, misconceives the nature of due process guarantees in the state grand jury context.

The fact that a State has no constitutional obligation to provide a grand jury for state criminal defendants simply does not entail the conclusion that a defendant has no right to an impartial and representative grand jury once the State does choose to make use of grand juries. On the contrary, the insertion of a grand jury into the process culminating in trial is of major consequence to the criminal defendant. In Kentucky, as in most jurisdictions, the grand jury both investigates alleged crimes and returns indictments when it believes sufficient evidence of a crime has been established. See Ky.Rev.Stats. §§ 29A.210, 29A.220 (1980); see also Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937 (1930). In both roles, a grand jury that is biased by virtue of its unrepresentativeness has significant power to influence the fairness of the ensuing trial; the scope and breadth of the preindictment investigation certainly affects the ability of the State to mount a convincing case at trial, and the fact that a body of the petit jury's peers has seen fit to return an indictment may be a powerful sign to the petit jury that the charges are well founded.

Given the potential power of the grand jury over the criminal defendant, there can be no question that due process requires state grand juries to be unbiased and impartial. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970) (once State chooses to bestow administrative benefits, due process require that administrative decisionmakers be unbiased); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (holding, many years before Constitution was held to require state jury trials, that state jury must be unbiased). The real question posed by this petition is whether the way to ensure that impartiality is to require that grand juries be fairly representative of the community in which they sit.

For two reasons already articulated in our cases, I believe the answer to that question should be yes. First, a grand jury is a collective decisionmaker designed both to find facts and to express the community's moral sense on the important questions presented to it. With respect to such a body, the exclusion of any large and identifiable segment of the community removes from the jury room "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." Peters v. Kiff, supra, 407 U.S., at 503, 92 S.Ct., at 2168. The exclusion of such a group deprives the grand jury of a perspective on human events that may have unquantifiable but fully legitimate significance with respect to the issues presented. See Ballard v. United States, 329 U.S. 187, 193-194, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946) ("The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded").

Second, once a State chooses to employ grand juries, those grand juries become integral elements in the system of criminal justice in that State. Law is not a process by which a society actually arrives at objective truth, but rather a means for structuring the truth-seeking process so that the answers it yields will be accepted as morally legitimate by the community; it is this acceptance that enables the verdicts of the jury system to be treated as "true." Imperative to the integrity of that system and to its perceived legitimacy is the perception that any biases from whatever source, including divergent cultural and historical experiences, be minimized. As we have said in an analogous context:

"Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. . . . 'The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.' " Rose v. Mitchell, 443 U.S. 545, 555-556 [99 S.Ct. 2993, 2999-3000, 61 L.Ed.2d 739] (1979) (quoting Ballard, supra, [329 U.S.,] at 195 [67 S.Ct., at 265] ) (emphasis added).

The allegation that, at this time in our history, women are being excluded from grand jury service in some counties of Kentucky—and that potential defendants are being investigated and indicted by such grand juries—surely calls into question the legitimacy of the system of justice in those counties. To sweep this allegation aside with the syllogism that, because there is no right to a state grand jury, there is no right to a fairly representative one, is to elide the practical and symbolic importance of state grand juries.

Finally, I note two of the serious incoherencies that would result from a decision that the Due Process Clause does not give petitioner standing to raise his grand-jury composition challenge. First, there is no dispute that a defendant has long had the right to challenge the composition of a state grand jury with respect to a cognizable group of which he himself is a member. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880). Although the Court has traditionally discussed this right in equal protection terms, it makes little sense to conceive of the right as solely an equal protection one, for the defendant in these cases is not asking to sit on the grand jury but rather to be fairly treated by it. Yet once this is recognized as the fundament of the right at stake, there is no logically defensible or analytically coherent way of arguing that the defendant is not also harmed when any "distinctive" group in the community is underrepresented on his grand jury, see Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). As Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975), makes clear, women are such a group.4 Second, in most States, as is true in Kentucky, see Ky.Rev.Stat. § 29A.060 (Supp.1984), the same statutory procedures are used for selecting both grand jurors and the petit jury venire; it is irrational and a little unseemly to say that, with respect to the same defendant, the very same procedures (indeed, the very same jury wheels) are both constitutionally valid and invalid—valid when the grand jury is being picked but invalid when used to pick the petit jury venire.

The opinion of the court below, which complains that "federal decisions have enshrined the statistician on the throne of expertise," 665 S.W.2d, at 306, makes clear that some lower courts refuse to take seriously the principle that state grand juries must be impartially constituted.5 Language from some of our opinions, and statements of individual Members of the Court, may encourage this response. Yet neither precedent nor logic suggests such a result. Accordingly, I believe the petition should be granted, and I respectfully dissent from the Court's failure to do so.