Sup. Ct. Ky. Reported below: 665 S.W. 2d 304.
JUSTICE MARSHALL, dissenting.
Petitioner is a Negro male who was 51 at the time he was indicted for murder in Franklin County, Ky. He challenged the composition of the grand jury that indicted him on the grounds, inter alia, that women and young adults were substantially and systematically underrepresented on grand juries in Franklin County. Testimony from a statistician concluded that this under-representation was statistically significant. Evidence was also presented that the selection system was not facially neutral, for the voter registration list from which grand jurors are selected in the county contains information on the gender, race, and date of birth of the prospective grand jurors.*fn1
Despite petitioner's assertion and his substantiating evidence, the Kentucky Supreme Court refused to consider the merits of this challenge. 665 S.W. 2d 304 (1984). Instead, that court held that, because petitioner was a 51-year-old Negro male, he had no standing to challenge the exclusion of women or young adults from grand juries in Franklin County. The court rested its conclusion on the view that challenges to the composition of a grand jury must be rooted in the Equal Protection Clause of the Fourteenth Amendment rather than in that Amendment's due process component. Thus, the court below concluded that petitioner himself
had no recourse for challenging the imbalance of the grand jury that indicted him.*fn2
The conclusion of the Kentucky Supreme Court is flatly at odds with the opinion announcing this Court's judgment in Peters v. Kiff, 407 U.S. 493 (1972). That opinion, joined by three Justices, stated: "[W]hen a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances [i.e., the standing] of the person making the claim. . . . [A] State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States." Id., at 498, 502 (emphasis added). This three-Justice opinion therefore concluded that a white male had standing under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment to bring a racial-discrimination challenge to the state system used to select his grand and petit juries.*fn3
The standing question is particularly important in light of the fact that, as of 1977, at least 22 States had some sort of discretionary system for the selection of grand jurors. J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, Appendix B, pp. 264-270 (1977). Because the opinion announcing the judgment in Peters was joined by only
three Justices, Peters did not definitively resolve the standing question raised in this petition for certiorari. The Court also declined in Alexander v. Louisiana, 405 U.S. 625, 633-634 (1972), to decide whether males could challenge the statutory exemption of women from state grand jury service, although Justice Douglas would have reached the question and invalidated the statute on federal due process grounds. Id., at 634 (Douglas, J., concurring). At the same time, individual Members of the Court have expressed the view that, because the Fifth Amendment right to a grand jury does not apply to state prosecutions, Hurtado v. California, 110 U.S. 516 (1884), "a state defendant has no right to a grand jury that reflects a fair cross-section of the community." Castaneda v. Partida, 430 U.S. 482, 509 (1977) (POWELL, J., dissenting).
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 (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. Stat. §§ ...