Sue Hartigan <[EMAIL PROTECTED]> writes:
SUPREME COURT OF THE UNITED STATES
No. 96-1584
TERRY CAMPBELL, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OFLOUISIANA , THIRD
CIRCUIT
[April 21, 1998]
JUSTICE KENNEDY delivered the opinion of the Court.
We must decide whether a white criminal defendant has standing to object
to
discrimination against black persons in the selection of grand jurors.
Finding he has the
requisite standing to raise equal protection and due process claims, we
reverse and
remand.
I
A grand jury in Evangeline Parish, Louisiana, indicted petitioner Terry
Campbell on one
count of second-degree murder. Campbell, who is white, filed a timely
pretrial motion to
quash the indictment on the grounds the grand jury was constituted in
violation of his equal
protection and due process rights under the Fourteenth Amendment and in
violation of the
Sixth Amendment's fair-crosssection requirement. Campbell alleged a
longstanding
practice of racial discrimination in the selection of grand jury
forepersons in the Parish.
His sole piece of evidence is that, between January 1976 and August
1993, no black
person served as a grand jury foreperson in the Parish, even though more
than 20 percent
of the registered voters were black persons. See Brief for Petitioner
16. The State does
not dispute this evidence. The trial judge refused to quash the
indictment because
"Campbell, being a white man accused of killing another white man,"
lacked standing to
complain "where all of the forepersons were white." App. to Pet. for
Cert. G-33.
After Campbell's first trial resulted in a mistrial, he was retried,
convicted of
second-degree murder, and sentenced to life in prison without
possibility of parole.
Campbell renewed his challenge to the grand jury foreperson selection
procedures in a
motion for new trial, which was denied. See id ., at I-2. The Louisiana
Court of Appeal
reversed, because, under our decision in Powers v. Ohio , 499 U.S. 400
(1991), Campbell
had standing to object to the alleged discrimination even though he is
white. 651 So. 2d 412
(1995). The Court of Appeal remanded the case for an evidentiary hearing
because it
found Campbell's evidence of discrimination inadequate. Id ., at 413.
The Louisiana Supreme Court reversed. It distinguished Powers as turning
on the
"considerable and substantial impact" that a prosecutor's discriminatory
use of
peremptory challenges has on a defendant's trial as well as on the
integrity of the judicial
system. See 661 So. 2d 1321, 1324 (1995). The court declined to extend
Powers to a claim
of discrimination in the selection of a grand jury foreperson. It also
found Hobby v. United
States , 468 U.S. 339 (1984), did not afford Campbell standing to raise
a due process
objection. In Hobby , this Court held no relief could be granted to a
white defendant even if
his due process rights were violated by discrimination in the selection
of a federal grand
jury foreperson. Noting that Hobby turned on the ministerial nature of
the federal grand
jury foreperson's duties, the Louisiana Supreme Court held "[t]he role
of the grand jury
foreman in Louisiana appears to be similarly ministerial" such that any
discrimination
"has little, if any, effect on the defendant's due process right of
fundamental fairness."
661 So. 2d, at 1324. Because the Court of Appeal had not addressed
Campbell's other
asserted points of error, the Louisiana Supreme Court remanded the case.
After the Court
of Appeal rejected Campbell's remaining claims, the Louisiana Supreme
Court refused to
reconsider its ruling on the grand jury issue. See 685 So. 2d 140
(1997). We granted
certiorari to address the narrow question of Campbell's standing to
raise equal protection,
due process, and fair-cross-section claims. 521 U. S. __ (1997).
II
As an initial matter, we note Campbell complains about more than
discrimination in the
selection of his grand jury foreperson; he alleges that discrimination
shaped the
composition of the grand jury itself. In the federal system and in most
States which use
grand juries, the foreperson is selected from the ranks of the already
seated grand jurors.
See 1 S. Beale, W. Bryson, J. Felman & M. Elston, Grand Jury Law and
Practice §4:6, p.
4-20 to 4-21 (2d ed. 1997) (either the judge selects the foreperson or
fellow grand jurors
elect him or her). Under those systems, the title "foreperson" is
bestowed on one of the
existing grand jurors without any change in the grand jury's
composition. In Louisiana, by
contrast, the judge selects the foreperson from the grand jury venire
before the remaining
members of the grand jury have been chosen by lot. La. Code Crim. Proc.
Ann., Art.
413(B) (West Supp. 1997); see also Beale, supra , at 4-22, n. 11 (Ohio,
Oklahoma,
Tennessee, and Virginia use procedures similar to Louisiana's). In
addition to his other
duties, the foreperson of the Louisiana grand jury 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. These considerations require us to
treat the case as one
alleging discriminatory selection of grand jurors.
III
Standing to litigate often turns on imprecise distinctions and requires
difficult line drawing.
On occasion, however, we can ascertain standing with relative ease by
applying rules
established in prior cases. See Allen v. Wright , 468 U.S. 737, 751
(1984). Campbell's
equal protection claim is such an instance.
In Powers v. Ohio , supra , we found a white defendant had standing to
challenge racial
discrimination against black persons in the use of peremptory
challenges. We determined
the defendant himself could raise the equal protection rights of the
excluded jurors.
Recognizing our general reluctance to permit a litigant to assert the
rights of a third party,
we found three preconditions had been satisfied: (1) the defendant
suffered an "injury in
fact"; (2) he had a "close relationship" to the excluded jurors; and (3)
there was some
hindrance to the excluded jurors asserting their own rights. Powers ,
supra , at 411 (citing
Singleton v. Wulff, 428 U.S. 106 (1976)). We concluded a white defendant
suffers a
serious injury in fact because discrimination at the voir dire stage "
'casts doubt on the
integrity of the judicial process' . . . and places the fairness of a
criminal proceeding in
doubt." 499 U. S., at 411. This cloud of doubt deprives the defendant of
the certainty that a
verdict in his case "is given in accordance with the law by persons who
are fair." Id ., at
413. Second, the excluded juror and criminal defendant have a close
relationship: They
share a common interest in eliminating discrimination, and the criminal
defendant has an
incentive to serve as an effective advocate because a victory may result
in overturning his
conviction. Id ., at 413-414. Third, given the economic burdens of
litigation and the small
financial reward available, "a juror dismissed because of race probably
will leave the
courtroom possessing little incentive to set in motion the arduous
process needed to vindi
cate his own rights." Id ., at 415. Upon consideration of these factors,
we concluded a
white defendant had standing to bring an equal protection challenge to
racial
discrimination against black persons in the petit jury selection
process.
Although Campbell challenges discriminatory selection of grand jurors,
rather than petit
jurors, Powers ' reasoning applies to this case on the question of
standing. Our prior cases
have not decided whether a white defendant's own equal protection rights
are violated
when the composition of his grand jury is tainted by discrimination
against black persons.
We do not need to address this issue because Campbell seeks to assert
the
well-established equal protection rights of black persons not to be
excluded from grand
jury service on the basis of their race. See Tr. 9 (Dec. 2, 1993); see
also Carter v. Jury
Comm'n of Greene Cty., 396 U.S. 320, 329-330 (1970) (racial exclusion of
prospective
grand and petit jurors violates their constitutional rights). Campbell
satisfies the three
preconditions for third-party standing outlined in Powers .
Regardless of his or her skin color, the accused suffers a significant
injury in fact when the
composition of the grand jury is tainted by racial discrimination.
"[D]iscrimination on the
basis of race in the selection of members of a grand jury . . . strikes
at the fundamental
values of our judicial system" because the grand jury is a central
component of the
criminal justice process. Rose v. Mitchell , 443 U.S. 545, 556 (1979).
The Fifth Amendment
requires the Federal Government to use a grand jury to initiate a
prosecution, and 22
States adopt a similar rule as a matter of state law. See 1 Beale, supra
, §1:2, p. 1-3; see
also Hurtado v. California , 110 U.S. 516 (1884) (Fifth Amendment's
grand jury
requirement is not binding on the States). The grand jury, like the
petit jury, "acts as a
vital check against the wrongful exercise of power by the State and its
prosecutors."
Powers , supra , at 411. It con trols not only the initial decision to
indict, but also significant
decisions such as how many counts to charge and whether to charge a
greater or lesser
offense, including the important decision to charge a capital crime. See
Vasquez v. Hillery
, 474 U.S. 254, 263 (1986). The integrity of these 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 , supra
, at 555-556 ("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"). Powers emphasized the harm inflicted when a
prosecutor discriminates
by striking racial minorities in open court and in front of the entire
jury pool. The Court
expressed concern that this tactic might encourage the jury to be
lawless in its own
actions. See 499 U. S., at 412-413. The State suggests this sort of harm
is not inflicted
when a single grand juror is selected based on racial prejudice because
the discrimination
is invisible to the grand jurors on that panel; it only becomes apparent
when a pattern
emerges over the course of years. See Brief for Respondent 16. This
argument, however,
underestimates the seriousness of the allegations. In Powers , even if
the prosecutor had
been motivated by racial prejudice, those responsible for the
defendant's fate, the judge
and the jury, had shown no actual bias. If, by contrast, the allegations
here are true, the
impartiality and discretion of the judge himself would be called into
question.
The remaining two preconditions to establish thirdparty standing are
satisfied with little
trouble. We find no reason why a white defendant would be any less
effective as an
advocate for excluded grand jurors than for excluded petit jurors. See
Powers , supra , at
413-414. The defendant and the excluded grand juror share a common inter
est in
eradicating discrimination from the grand jury selection process, and
the defendant has a
vital interest in asserting the excluded juror's rights because his
conviction may be
overturned as a result. See Vasquez , supra , at 264; Rose , supra , at
551; Cassell v.
Texas, 339 U.S. 282 (1950). The State contends Campbell's connection to
"the excluded
class of . . . jurors . . . who were not called to serve . . . for the
prior 16 1/2 years is
tenuous, at best." Brief for Respondent 22. This argument confuses
Campbell's
underlying claim with the evidence needed to prove it. To assert the
rights of those
venirepersons who were excluded from serving on the grand jury in his
case, Campbell
must prove their exclusion was on account of intentional discrimination.
He seeks to do so
based on past treatment of similarly situated venirepersons in other
cases, see Castaneda
v. Partida, 430 U.S. 482, 494 (1977), but this does not mean he seeks to
assert those
venirepersons' rights. As a final matter, excluded grand jurors have the
same economic
disincentives to assert their own rights as do excluded petit jurors.
See Powers , supra , at
415. We find Campbell, like any other white defendant, has standing to
raise an equal
protection challenge to discrimination against black persons in the
selection of his grand
jury.
IV
It is axiomatic that one has standing to litigate his or her own due
process rights. We need
not explore the nature and extent of a defendant's due process rights
when he alleges
discriminatory selection of grand jurors, and confine our holding to his
standing to raise
the issue. Our decision in Peters v. Kiff addressed the due process
question, although a
majority of Justices could not agree on a comprehensive statement of the
rule or an
appropriate remedy for any violation. See 407 U.S. 493, 504 (1972)
(opinion of Marshall,
J.) ("[W]hatever his race, a criminal defendant has standing to
challenge the system used
to select his grand . . . jury on the ground that it arbitrarily
excludes . . . members of any
race, and thereby denies him due process of law"); id ., at 507 (White,
J., joined by
Brennan and Powell, JJ., concurring in judgment) ("[T]he strong
statutory policy of [18 U.
S. C.] §243, which reflects the central concern of the Fourteenth
Amendment" permits a
white defendant to challenge discrimination in grand jury selection).
Our more recent
decision in Hobby v. United States proceeded on the implied assumption
that a white
defendant had standing to raise a due process objection to
discriminatory appointment of a
federal grand jury foreperson and skipped ahead to the question whether
a remedy was
available. 468 U. S., at 350. It is unnecessary here to discuss the
nature and full extent of
due process protection in the context of grand jury selection. That
issue, to the extent it is
still open based upon our earlier precedents, should be determined on
the merits,
assuming a court finds it necessary to reach the point in light of the
concomitant equal
protection claim. The relevant assumption of Hobby , and our holding
here, is that a
defendant has standing to litigate whether his conviction was procured
by means or
procedures which contravene due process.
The Louisiana Supreme Court erred in reading Hobby to foreclose
Campbell's standing to
bring a due process challenge. 661 So. 2d 1321, 1324 (1995). In Hobby ,
we held
discrimination in the selection of a federal grand jury foreperson did
not infringe principles
of fundamental fairness because the foreperson's duties were
"ministerial." See Hobby ,
supra , at 345-346. In this case, the Louisiana Supreme Court decided a
Louisiana grand
jury foreperson's duties were ministerial too, but then couched its
decision in terms of
Campbell's lack of standing to litigate a due process claim. 661 So. 2d,
at 1324.
The Louisiana Supreme Court was wrong on both counts. Its interpretation
of Hobby is
inconsistent with the implicit assumption of standing we have just noted
and with our
explicit reasoning in that case. In Hobby , a federal grand jury
foreperson was selected
from the existing grand jurors, so the decision to pick one grand juror
over another, at
least arguably, affected the defendant only if the foreperson was given
some significant
duties that he would not have had as a regular grand juror. See supra ,
at __. Against this
background, the Court rejected the defendant's claim because the
ministerial role of a
federal grand jury foreperson "is not such a vital one that
discrimination in the
appointment of an individual to that post significantly invades" due
process. Hobby , supra
, at 346. Campbell's challenge is different in kind and degree because
it implicates the
impermissible appointment of a member of the grand jury. See supra , at
__. What
concerns Campbell is not the foreperson's performance of its duty to
preside, but
performance as a grand juror, namely voting to charge Campbell with
second-degree
murder.
The significance of this distinction was acknowledged by Hobby 's
discussion of a previous
case, Rose v. Mitchell , 443 U.S. 545 (1979). In Rose , we assumed
relief could be granted
for a constitutional challenge to discrimination in the appointment of a
state grand jury
foreperson. See id ., at 556. Hobby distinguished Rose in part because
it involved
Tennessee's grand jury system. Under the Tennessee law then in effect,
12 members of
the grand jury were selected at random, and then the judge appointed a
13th member who
also served as foreperson. See Hobby , 468 U. S., at 347. As a result,
Hobby pointed out
discrimination in selection of the foreperson in Tennessee was much more
serious than in
the federal system because the former can affect the composition of the
grand jury
whereas the latter cannot: "So long as the grand jury itself is properly
constituted, there is
no risk that the appointment of one of its members as foreman will
distort the overall
composition of the array or otherwise taint the operation of the
judicial process." Id ., at
348. By its own terms, then, Hobby does not address a claim like
Campbell's.
V
One of the questions raised on certiorari is whether Campbell also has
standing to raise a
fair cross-section claim. It appears neither the Louisiana Supreme Court
nor the Louisiana
Court of Appeal discussed this contention. "With 'very rare exceptions,'
. . . we will not
consider a petitioner's federal claim unless it was either addressed by,
or properly
presented to, the state court that rendered the decision we have been
asked to review."
Adams v. Robertson , 520 U. S. __, __ (1997) ( per curiam ) (slip op.,
at 2). Campbell has
made no effort to meet his burden of showing this issue was properly
presented to the
Louisiana appellate courts, even after the State pointed out this
omission before this
Court. See Brief for Respondent 2930. In fact, Campbell devotes no more
than one page
of text in his brief to his fair-cross-section claim. See Brief for
Petitioner 31-32. We
decline to address the issue.
The judgment of the Louisiana Supreme Court is reversed. The case is
remanded for
further proceedings not inconsistent with this opinion.
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