Rose v. Mitchell

443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739, 1979 U.S. LEXIS 146

Opinions

Mr. Justice Blackmun

delivered the opinion of the Court.

Footnotes

•

†

In this federal habeas corpus case, respondents claim they were the victims of racial discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment, in the selection of the foreman of the Tennessee grand jury that indicted them for murders in the first degree. As the case comes to this Court, no issue of discrimination in the selection of the venire is presented; we are concerned only with the selection of the foreman.

I

In November 1972, respondents James E. Mitchell and James Nichols, Jr., and two other men were jointly indicted by the grand jury of Tipton County, Tenn. The four were charged in two counts of first-degree murder in connection with the shooting deaths of patrons during the robbery of a place known as White’s Cafe.¹ Prior to trial, respondents filed with the trial court a written pro se motion in the nature of a plea in abatement. App. 1. They sought thereby, together with other relief, the dismissal of the indictment on the grounds that the grand jury array, and the foreman, had been selected in a racially discriminatory fashion.² Each respondent is a Negro.

The court appointed counsel to represent respondents and in due course conducted an evidentiary hearing on the plea in abatement. At that hearing, testimony on behalf of the respondents was taken from the 3 Tipton County jury commissioners; from 2 former Tipton County grand jury foremen; from the foreman of the grand jury serving at the time respondents were indicted; and from 11 of the 12 other members of that grand jury. The court clerk was a witness on behalf of the State. Id., at 3-35.

At the close of this evidence, the court denied the plea in abatement, first orally, and then by written order, without comment. Id., at 35 and 36.

Respondents were then tried jointly to a jury. A verdict of guilty of first-degree murder on each count was returned. Respondents received sentences of 60 years on each count, the sentences to run consecutively with credit allowed for time spent in jail awaiting trial.

On appeal, the Court of Criminal Appeals of Tennessee affirmed the convictions, finding, with respect to an assignment of error relating to the plea in abatement, that the “facts here do not demonstrate a systematic exclusion of Negroes upon racial grounds.” Id., at 38-39. The Supreme Court of Tennessee denied certiorari. Id., at 42.

Respondents each then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee, id., at 43-52, 62-73, renewing, among other things, the allegation of discrimination in the selection of the Tipton County grand jury and its foreman. The District Court referred the petitions to a magistrate who, after reviewing the evidence introduced in the state court at the hearing on the plea in abatement and studying the method of selection, recommended that the court hold an evidentiary hearing on the grand jury and jury foreman selection issues. Specifically, the magistrate concluded that respondents had presented an unrebutted prima facie case with respect to the selection of the foreman. Id., at 84, 90, 97. The District Court disagreed with the magistrate as to the grand jury, and concluded that the state judge had ruled correctly on that issue. On the foreman question, the District Court went along with the magistrate, and ordered the State to make further response. Id., at 98. 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. Id., at 102-106, 108-113. On the basis of these affidavits, the petitions were ordered dismissed. Id., at 121-122.

The District Judge, however, granted the certificate of probable cause required by Fed. Rule App. Proc. 22 (b), App. 126-127, and respondents appealed to the United States Court of Appeals for the Sixth Circuit.

The Court of Appeals reversed. 570 F. 2d 129 (1978). That court deemed it unnecessary to resolve respondents’ contentions concerning discrimination in the selection of the grand jury venire, id., at 134, since it found sufficient grounds to reverse with respect to the selection of the foreman. It remanded the case with instructions for the entry of an order that respondents’ murder convictions be set aside and that respondents be reindicted within 60 days or be released. Id., at 137.

We granted certiorari to consider the foreman issue. 439 U. S. 816 (1978).

II

We initially address two arguments that, aside from the specific facts of this particular case, go to the question whether a federal court, as a matter of policy, should hear claims of racial discrimination in the selection of a grand jury when reviewing a state conviction. First, we consider whether claims of grand jury discrimination should be considered harmless error when raised, on direct review or in a habeas corpus proceeding, by a defendant who has been found guilty beyond a reasonable doubt by a properly constituted petit jury at a trial on the merits that was free from other constitutional error. Second, we consider the related question whether such claims should be cognizable any longer on federal habeas corpus in light of the decision in Stone v. Powell, 428 U. S. 465 (1976).

A

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.” Alexander v. Louisiana, 405 U. S. 625, 628 (1972); Bush v. Kentucky, 107 U. S. 110, 119 (1883); Neal v. Delaware, 103 U. S. 370, 394 (1881). See Castaneda v. Partida, 430 U. S. 482, 492-495, and n. 12 (1977).³ A criminal defendant “is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.” Alexander v. Louisiana, 405 U. S., at 628-629. Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. E. g., Hill v. Texas, 316 U. S. 400, 406 (1942).⁴

Until today, only one Justice among those who have served on this Court in the 100 years since Strauder v. West Virginia, 100 U. S. 303 (1880), has departed from this line of decisions. In his dissent in Cassell v. Texas, 339 U. S. 282, 298 (1950), Mr. Justice Jackson voiced this lone objection by arguing that federal courts should not set aside criminal convictions solely on the ground that discrimination occurred in the selection of the grand jury, so long as no constitutional impropriety tainted the selection of the petit jury, and guilt was established beyond a reasonable doubt at a trial free from constitutional error. The Cassell dissent noted that discrimination in the selection of the grand jury had nothing to do with the fairness of the trial or the guilt or innocence of the defendant, and that reversal based on such discrimination conflicted “with another principle important to our law, viz., that no conviction should be set aside for errors not affecting substantial rights of the accused.” Id., at 299.

Mr. Justice Jackson could discern no reason to permit this conflict. In the first place, he noted, the convicted defendant suffered no possible prejudice. Unlike the petit jury, the grand jury sat only to determine probable cause to hold the defendant for trial. It did not consider the ultimate issue of guilt or innocence. Once a trial court heard all the evidence and determined it was sufficient to submit the case to the trier of fact, and once that trier determined that the defendant was guilty beyond a reasonable doubt, Mr. Justice Jackson believed that it “hardly lies in the mouth of a defendant ... to say that his indictment is attributable to prejudice.” Id., at 302. “Under such circumstances,” he concluded, “it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict.” Ibid.

Nor did Mr. Justice Jackson believe the Strauder line of cases to be justified by a need to enforce the rights of those discriminated against to sit on grand juries without regard to their race. He pointed out that Congress had made it a crime to discriminate in this manner, 18 U. S. C. § 243,⁵ and that civil remedies at law and equity were available to members of the class discriminated against. Accordingly, Mr. Justice Jackson would have held that “discrimination in selection of the grand jury . . . , however great the wrong toward qualified Negroes of the community, was harmless to this defendant,” 339 U. S., at 304, and would have left enforcement of Fourteenth Amendment interests to criminal prosecutions under § 243 and civil actions instituted by such “qualified Negroes.”

This position for the first time has attracted the support of additional Members of the Court, as expressed in the separate opinion of Mr. Justice Stewart in this case. Echoing the Cassell dissent, this separate opinion asserts that “the time has come to acknowledge that Mr. Justice Jackson’s [position] is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction.” Post, at 575. It argues that the conviction of the defendant should be a break in the chain of events that preceded it, and notes that where Fourth or Fifth Amendment rights are violated, the evidence illegally obtained is suppressed, but “the prosecution is not barred altogether.” Post, at 576-577, n. 4. The separate opinion be lieves that any other interests that are harmed by grand jury discrimination may be protected adequately by prosecutions, civil actions, or pretrial remedies available to defendants. In such circumstances, it finds the heavy social cost entailed in a reversal unjustified, especially in light of the fact the defendant himself has suffered no prejudice. - Accordingly, the separate opinion would not recognize, either on direct review or on an application for a writ of habeas corpus, a claim of grand jury discrimination as a valid ground for setting aside a criminal conviction.⁶

This Court, of course, consistently has rejected this argument. It has done so implicitly in those cases in which it has reaffirmed the Strauder principle in the context of grand jury discrimination. E. g., Reece v. Georgia, 350 U. S. 85, 87 (1955); Alexander v. Louisiana, 405 U. S., at 628. And it has done so expressly, where the argument was pressed in the guise of the claim that the constitutional rights of the defendant are not violated by grand jury discrimination since an indictment only brings that defendant before the petit jury for trial. Pierre v. Louisiana, 306 U. S. 354, 356-358 (1939). See Cassell v. Texas, 339 U. S., at 290 (Frankfurter, J., concurring) ; id., at 296 (Clark, J., concurring). We decline now to depart from this longstanding consistent practice, and we adhere to the Court’s previous decisions.

Discrimination on account of race was the primary evil at which the Amendments adopted after the War Between the States, including the Fourteenth Amendment, were aimed. The Equal Protection Clause was central to the Fourteenth Amendment’s prohibition of discriminatory action by the State: it banned most types of purposeful discrimination by the State on the basis of race in an attempt to lift the burdens placed on Negroes by our society. It is clear from the earliest cases applying the Equal Protection Clause in the context of racial discrimination in the selection of a grand jury, that the Court from the first was concerned with the broad aspects of racial discrimination that the Equal Protection Clause was designed to eradicate, and with the fundamental social values the Fourteenth Amendment was adopted to protect, even though it addressed the issue in the context of reviewing an individual criminal conviction. Thus, in the first case establishing the principles that have guided the Court’s decisions these 100 years, the Court framed the issue in terms of the larger concerns with racial discrimination in general that it understood as being at the core of the Fourteenth Amendment:

“The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others... . [T]he apprehension that through prejudice [such persons] might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws.” Strauder v. West Virginia, 100 U. S., at 308, 309.

Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. 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. As this Court repeatedly has emphasized, such discrimination “not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.” Smith v. Texas, 311 U. S. 128, 130 (1940) (footnote omitted). The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. “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.” Ballard v. United States, 329 U. S. 187, 195 (1946).

4 Because discrimination on the basis of race in the selection of members of a grand jury thus strikes at the fundamental values of our judicial system and our society as a whole, the Court has recognized that a criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded. E. g., Neal v. Delaware, 103 U. S., at 394; Reece v. Georgia, 350 U. S., at 87. For this same reason, the Court also has reversed the conviction and ordered the indictment quashed in such cases without inquiry into whether the defendant was prejudiced in fact by the discrimination at the grand jury stage. Since the beginning, the Court has held that where discrimination in violation of the Fourteenth Amendment is proved, “‘[t]he court will correct the wrong, will quash the indictment[,] or the panel[;] or, if not, the error will be corrected in a superior court,' and ultimately in this court upon review,” and all without regard to prejudice. Neal v. Delaware, 103 U. S., at 394, quoting Virginia v. Rives, 100 U. S. 313, 322 (1880). See Bush v. Ken tucky, 107 U. S., at 119. The Court in Hill v. Texas, 316 U. S., at 406, stated:

“[N]o State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. Tumey v. Ohio, 273 TJ. S. 510, 535. It is the State’s function, not ours, to assess the evidence against a defendant. But it is our duty as well as the State’s to see i!o it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all — the least deserving as well as the most virtuous.” ⁷

We do not deny that there are costs associated with this approach. But the remedy here is in many ways less drastic than in situations where other constitutional rights have been violated. In the case of a Fourth or Fifth Amendment violation, the violation often results in the suppression of evidence that is highly probative on the issue of guilt. Here, however, reversal does not render a defendant “immune from prosecution,” nor is a subsequent reindictment and reprosecution “barred altogether,” as Mr. Justice Stewart’s opinion suggests. Post, at 576-577, n. 4. “A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict and try him again by the procedure which conforms to constitutional requirements.” Hill v. Texas, 316 U. S., at 406. And in that subsequent prosecution, the State remains free to use all the proof it introduced to obtain the conviction in the first trial.

In any event, we believe such costs as do exist are outweighed by the strong policy the Court consistently has recognized of combating racial discrimination in the administration of justice. And regardless of the fact that alternative remedies remain to vindicate the rights of those members of the class denied the chance to serve on grand juries, the fact is that permitting challenges to unconstitutional state action by defendants has been, and is, the main avenue by which Fourteenth Amendment rights are vindicated in this context. Prosecutions under 18 U. S. C. § 243 have been rare, and they are not under the control of the class members and the courts. Civil actions, expensive to maintain and lengthy, have not often been used. And even assuming that some type of pretrial procedure would be open to a defendant, e. g., petitioning for a writ of habeas corpus in federal court, under such a procedure the vindication of federal constitutional rights would turn on a race to obtain a writ before the State could commence the trial.

We think the better view is to leave open the route that over time has been the main one by which Fourteenth Amendment rights in the context of grand jury discrimination have been vindicated. For we also cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious. We therefore decline “to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice,” Cassell v. Texas, 339 U. S., at 290 (Frankfurter, J., concurring), and we adhere to our position that discrimination in the selection of the grand jury remains a valid ground for setting aside a criminal conviction.⁸

B

The State makes the additional argument that the decision in Stone v. Powell, 428 U. S. 465 (1976), should be extended so as to foreclose a grant of federal habeas corpus',relief to a state prisoner on the ground of discrimination in the selection of the grand jury. Mr. Justice Powell, dissenting in Castaneda v. Partida, 430 U. S., at 508 n. 1, joined by The Chief Justice and Mr. Justice Rehnquist, and at least inferentially by Mr. Justice Stewart, id., at 507, specifically observed that a “strong case may be made that claims of grand jury discrimination are not cognizable on federal habeas corpus after Stone v. Powell.” In this connection, Mr. Justice Powell noted that a claim by a convicted prisoner of grand jury discrimination 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.” Id., at.508 n. 1. He concluded that, as in Stone, “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.’ ” 430 U. S., at 508 n. 1, quoting Stone, 428 U. S., at 494.

The State echoes these arguments. It contends that habeas corpus relief should be granted only where the error alleged in support of that relief affected the determination of guilt. In this case, as in Stone v. Powell, it argues, no error affected the trial on the merits. Moreover, only a relatively minor error, involving the nonvoting foreman of the grand jury and not the entire venire, is at issue. Accordingly, following its interpretation of Stone, the State contends that the benefits derived from extending habeas relief in this case are outweighed by the costs associated with reversing a state conviction entered upon a finding of guilt beyond a reasonable doubt at a trial free from constitutional error.⁹

In Stone v. Powell, however, the Court carefully limited the reach of its opinion. It stressed that its decision to limit review was “not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally.” 428 U. S., at 495 n. 37 (emphasis in original). Rather, the Court made it clear that it was confining its ruling to cases involving the judicially created exclusionary rule, which had minimal utility when applied in a habeas corpus proceeding. “In sum,” the Court concluded, it was holding “only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.” Ibid.

Mindful of this limited reach of Stone, we conclude that 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.

In the first place, claims such as those pressed by respondents in this case concern allegations that the trial court itself violated the Fourteenth Amendment in the operation of the grand jury system. In most such cases, as in this one, this same trial court will be the court that initially must decide the merits of such a claim, finding facts and applying the law to those facts. This leads us to doubt that claims that the operation of the grand jury system violates the Fourteenth Amendment in general will receive the type of full and fair hearing deemed essential to the holding of Stone. See, e. g., 428 U. S., at 494, 495 n. 37. In Fourth Amendment cases, courts are called upon to evaluate the actions of the police in seizing evidence, and this Court believed that state courts were as capable of performing this task as federal habeas courts. Id., at 493-494, n. 35. But claims that the state judiciary itself has purposely violated the Equal Protection Clause are different. There is a need in such cases to ensure that an independent means of obtaining review by a federal court is available on a broader basis than review only by this Court will permit. A federal forum must be available if a full and fair hearing of such claims is to be had.

Beyond this, there are fundamental differences between the claim here at issue and the claim at issue in Stone v. Powell. Allegations of grand jury discrimination involve charges that state officials are violating the direct command of the Fourteenth Amendment, and federal statutes passed under that Amendment, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Since the first days after adoption of the Amendment, the Court has recognized that by its direct operation the Equal Protection Clause forbids the States to discriminate in the selection of members of a grand jury. This contrasts with the situation in Stone, where the Court considered application of “a judicially created remedy rather than a personal constitutional right.” 428 U. S., at 495 n. 37. Indeed, whereas the Fourteenth Amendment by its terms always has been directly applicable to the States, the Fourth Amendment and its attendant exclusionary rule only recently have been applied fully to the States.

"In this context, the federalism concerns that motivated the Court to adopt the rule of Stone v. Powell are not present. Federal courts have granted relief to state prisoners upon proof of the proscribed discrimination for nearly a century. See, e. g., Virginia v. Rives, 100 U. S., at 322. The confirmation that habeas corpus remains an appropriate vehicle by which federal courts are to exercise their Fourteenth Amendment responsibilities is not likely further to increase “ ‘friction between our federal and state systems of justice, [or impair] the maintenance of the constitutional balance upon which the doctrine of federalism is founded.’ ” Stone v. Powell, 428 U. S., at 491 n. 31, quoting Schneckloth v. Bustamante, 412 U. S. 218, 259 (1973) (Powell, J., concurring).

Further, Stone rested to a large extent on the Court’s perception that the exclusionary rule is of minimal value when applied in a federal habeas proceeding. The Court there found that the deterrent value of the exclusionary rule was not enhanced by the possibility that a “conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant.” 428 U. S., at 493. Nor did the Court believe that the “overall educative effect of the exclusionary rule would be appreciably diminished if search- and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Ibid. And it could not find any basis to say that federal review would reveal flaws in the search or seizure that had gone undetected at trial or on appeal. Ibid. In these circumstances, the Court concluded that the benefits of applying the Fourth Amendment exclusionary rule on federal habeas did not outweigh the costs associated with it.

None of this reasoning has force here. Federal habeas review is necessary to ensure that constitutional defects in the state judiciary’s grand jury selection procedure are not overlooked by the very state judges who operate that system. There is strong reason to believe that federal review would indeed reveal flaws not appreciated by state judges perhaps too close to the day-to-day operation of their system to be able properly to evaluate claims that the system is defective. The educative and deterrent effect of federal review is likely to be great, since the state officials who operate the system, judges or employees of the judiciary, may be expected to take note of a federal court’s determination that their procedures are unconstitutional and must be changed.

We note also that Stone rested to an extent on the Court’s feeling that state courts were as capable of adjudicating Fourth Amendment claims as were federal courts. But where the allegation is that the state judiciary itself engages in discrimination in violation of the Fourteenth Amendment, there is a need to preserve independent federal habeas review of the allegation that federal rights have been transgressed. As noted above, in this case, the very judge whose conduct respondents challenged decided the validity of that .challenge.

It is also true that the concern with judicial integrity, deprecated by the Court in Stone in the context of habeas review of exclusionary rule issues, is of much greater concern in grand jury discrimination cases. The claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question. The force of this justification for extending federal habeas review cannot be said to be minimal where allegations of improper judicial conduct are made.

As pointed out in our discussion of the Cassell dissent, it is tempting to exaggerate the costs associated with quashing an indictment returned by an improperly constituted grand jury. In fact, the costs associated with quashing an indictment are significantly less than those associated with suppressing evidence. Evidence suppressed under the Fourth Amendment may not be used by the State in any new trial, though it be highly probative on the issue of guilt. In contrast, after a federal court quashes an indictment, the State remains free to use at a second trial any and all evidence it employed at the first proceeding. A prisoner who is guilty in fact is less likely to go free, therefore, than in cases involving the exclusionary rule. Hill v. Texas, 316 U. S., at 406. Providing federal habeas corpus relief is, as a consequence, less of an intrusion on the State’s system of criminal justice than was the case in Stone.

Finally, we note that the constitutional interests that a federal court adjudicating a claim on habeas of grand jury discrimination seeks to vindicate are substantially more compelling than those at issue in Stone. As noted above, discrimination on account of race in the administration of justice strikes at the core concerns of the Fourteenth Amendment and at fundamental values of our society and our legal system. Where discrimination that is “at war with our basic concepts of a democratic society and a representative government,” Smith v. Texas, 311 U. S., at 130, infects the legal system, the strong interest in making available federal habeas corpus relief outweighs the costs associated with such relief.

We therefore decline to extend the rationale of Stone v. Powell to a claim of discrimination in the selection of the grand jury that indicts the habeas petitioner. And we hold that federal habeas corpus relief remains available to provide a federal forum for such claims.

Ill

Notwithstanding these holdings that claims of discrimination in the selection of members of the grand jury are cogniza ble on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed, it remains true that to be entitled- to habeas relief the present respondents were required to prove discrimination under the standards set out in this Court’s cases. That is, “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.” Castaneda v. Par-tida, 430 U. S., at 494. Specifically, respondents were required to prove their prima facie case with regard to the foreman as follows:

“The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. . . . Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time. . . . This method of proof, sometimes called the ‘rule of exclusion,’ has been held to be available as a method of proving discrimination in jury selection against a delineated class. . . . Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” Ibid.

Only if respondents established a prima facie case of discrimination in the selection of the foreman in accord with this approach, did the burden shift to the State to rebut that prima facie case. Id., at 495.

There is no question, of course, that respondents, as Negroes, are members of a group recognizable as a distinct class capable of being singled out for different treatment under the laws. Id., at 494; Hernandez v. Texas, 347 U. S. 475, (1954). And one may assume for purposes of this case that the Tennessee method of selecting a grand jury foreman is susceptible of abuse. Accordingly, we turn to a consideration of the evidence offered by respondents in their attempt to prove sufficient underrepresentation to make out a prima facie case.

Respondents’ case at the hearing on the plea in abatement consisted in its entirety of the following:

Respondents first called as witnesses the three Tipton County jury commissioners. These commissioners, all white, testified only as to the selection of the grand jury venire. In view of the Tennessee method of foreman selection, n. 2, supra, they did not testify, and could hardly be expected to have testified, as to the method of selection of foremen; neither did any of them refer to the race of any past foremen.

Respondents next called two former foremen and the current foreman of the Tipton County grand jury. The first, Frank McBride, testified that he was a lifelong resident of the county, but there was no evidence as to his age and thus as to the years he lived in the county. McBride stated that he had served as foreman, “ten or twelve years ago . . . for five or six years . . . and then about two or three times since then, just for one session of Court.” App. 17. In answer to respondents’ inquiry whether he had “ever known of any foreman that was a black man,” McBride said “No, sir.” Id., at 18. The second past foreman, Peyton J. Smith, stated that he had resided in Tipton County all his life but, again, no inquiry was made to as to how long that had been. Smith testified that he had served as foreman “for several years back in the early ’50’s, and . . . several times since then on occasion of the illness of the foreman at that time.” Id., at 20. Like McBride, Smith answered “No” when asked whether he had ever known of a Negro foreman. Ibid. Jimmy Naifeh, the current foreman, testified that he had served for approximately two years and that he did not know “if there was or if there wasn’t” ever a Negro foreman of the county grand jury. Id., at 25. No inquiry was made of Naifeh as to the length of time he had lived in the county.

Respondents then called 11 of the 12 grand jurors¹⁰ (other than the foreman) who were serving when respondents were indicted. Not one testified relative to the selection of the foreman or the race of past foremen. Their testimony, individually and collectively, was to the effect that one among their number was a Negro; that they had heard only one witness, a deputy sheriff, on respondents’ case; that no one voiced any prejudice or hostility toward respondents because of their race; and that there was no consideration of the fact that respondents were Negroes. Indeed, when some were asked whether they knew whether respondents were Negroes, they answered in the negative. Id., at 26-32.

This was all the evidence respondents presented in support of their case. In rebuttal, the State called only the clerk of the trial court. He was asked no question relating to grand jury foremen, and respondents made no inquiry of him on cross-examination on that or on any other topic. Id., at 34-35.

Two additional facts were stressed by the State at the later federal habeas proceeding. The first was the recruitment, at the 1972 term, of temporary (and former) foreman Smith in place of regular foreman Naifeh. Smith had testified at the hearing on the plea in abatement that Naifeh “could not be here and I was asked to come and appear before this Court and the judge asked me to serve.” Id., at 21. The State argued that Smith had been selected only because the judge believed Smith, in view of his experience, would be a capable temporary replacement for the regular foreman. This proper motive, the State said, negated any claim that racial discrimination played a role in the selection of Smith to be temporary foreman. The second fact was that the temporary foreman did not vote on the indictment returned against respondents, see id., at 105; this was because the other 12 had all voted to indict and the temporary foreman’s vote therefore was unnecessary. Thus, the State argued, any possible error in the selection of the foreman was harmless and of no consequence to respondents.

In support of its argument to the federal habeas court, the State submitted the affidavit of the judge who had selected the temporary foreman and the permanent foreman, and who had presided at the hearing on the plea in abatement as well as at respondents’ trial. The judge, who had served since 1966, id., at 5, a period of seven years, stated that Naifeh “was unable to serve because he was going to be out of the County at the November 1972 term.” Id., at 112. The judge went on to say that he had appointed Smith temporary foreman because Smith had had experience “and does a good job as such foreman.” The affidavit concluded:

“In my five counties, I do not have a black grand jury foreman, although I have a black member of my Jury Commission in one county. Most all of my Grand Juries and Petit Juries have sizeable numbers of blacks on them, both men and women. I don’t appoint Grand Jury Foreman very often because when their two year term expires, I usually reappoint them, thus they serve a long time and the problem doesn’t come up very often. I don’t think that I have really given any thought to appointing a black foreman but I have no feeling against doing so.” Id., at 113.

It was on the basis of this material in rebuttal that the District Court declined to issue the writs of habeas corpus. It found that no racial discrimination had been proved, since the foreman had been “selected for other than racial reasons, and . . . did not vote at the time the indictment was rendered.” Id., at 122.

The Court of Appeals, in reversing, conceded: “The facts elicited at the pretrial hearing were meager.” 570 F. 2d, at 132. It went on, however, to note: “There has never been a black foreman or forewoman of a grand jury in Tipton County according to the recollections of the trial judge, three jury commissioners, and three former foremen.” Id., at 134 — 135. This fact, the court concluded, coupled with the opportunity for discrimination found to be inherent- in the selection system, was sufficient to make out a prima facie case of discrimination in the selection of the foreman. And the Court of Appeals held that the State had failed to rebut that case. The exculpatory affidavit of the judge asserting a benign reason for the selection of the foreman, in the court's view, could not serve to rebut respondents’ case in the absence of proof that there were no qualified Negroes to serve as foreman. The fact the foreman did not vote, the court held, similarly did not support the District Court’s judgment, since the broad powers exercised by the foreman in conducting the grand jury’s proceedings meant that respondents could have been prejudiced even though the foreman had not cast a vote against them.

IY

In reaching our conclusion in disagreement with the Court of Appeals, we note first that that court seems to have overemphasized and exaggerated the evidence in support of its conclusion that there had “never been a black foreman or forewoman of a grand jury in Tipton County.” The Court of Appeals believed this conclusion had been proved by the recollections of the trial judge, the testimony of three jury commissioners, and the testimony of three former foremen. Ibid. But recollections of the trial judge — by which the Court of Appeals presumably meant the affidavit filed in Federal District Court by the trial judge — formed no part of the case put on by respondents. (Indeed, the Court of Appeals seems to have recognized this in another portion of its opinion, where it considered the state trial judge’s affidavit to have been offered in rebuttal of the respondents’ asserted prima facie case.) And the jury commissioners gave no testimony whatsoever relating to foremen of the grand jury, to the method of selecting foremen, or to the race of past foremen. Thus, respondents’ prima facie case as to discrimination in the selection of grand jury foremen rested entirely and only on the testimony of the three foremen. On the record of this case, it is that testimony alone upon which respondents’ allegations of discrimination must stand or fall.

The testimony of the three foremen, however, did not establish respondents’ case. First, it cannot be said that the testimony covered any significant period of time. Smith testified that he served in the early 1950’s and occasionally thereafter, but except for the fact that Smith was resident in the county, and for his negative answer to the question whether he had “known of any foreman that has been black,” there is nothing in the record to show that Smith knew who had served as foremen in the interim years when he was not serving. Similarly, McBride testified that he had served for 5 or 6 years some 10 or 12 years prior to the 1973 hearing, and on two or three occasions since then, and had not known of any Negro’s having acted as foreman of the grand jury, but he gave no indication that he was knowledgeable as to the years not covered by this service. Naifeh’s testimony was the weakest from respondents’ point of view. He had served as foreman for only two years prior to the hearing, and he did not know one way or the other whether a Negro had served as foreman of the county grand jury. Thus, even assuming that the period 1951-1973 is the significant one for purposes of this case, respondents’ evidence covered only portions of that time and left a number of years during that period about which no evidence whatsoever was offered.

Moreover, such evidence as was provided by the testifying foremen was of little force. McBride and Smith simply said “No” in response to the question whether either had ever known of any Negro foreman. Naifeh could give no information on the point. There thus was no positive testimony that no Negro had ever served during the critical period of time; the only testimony was that three foremen who served for parts of that period had no knowledge of any. And there is no indication in the record that Smith, McBride, and Naifeh necessarily would have been aware had a Negro ever served as foreman.*

Most important, there was no evidence as to the total number of foremen appointed by the judges in Tipton County during the critical period of time. Absent such evidence, it is difficult to say that the number of Negroes appointed foreman, even if zero, is statistically so significant as to make out a case of discrimination under the.“rule of exclusion.” The only testimony in the record concerning Negro population of the county was to the effect that it was approximately 30%.¹¹ App. 11. Given the fact that any foreman was not limited in the number of 2-year terms he could serve, and given the inclination on the part of the judge to reappoint, it is likely that during the period in question only a few persons in actual number served as foremen of the grand jury. If the number was small enough, the disparity between the ratio of Negroes chosen to be foreman to the total number of foremen, and the ratio of Negroes to the total population of the county, might not be “sufficiently large [that] it is unlikely that [this disparity] is due solely to chance or accident.” Castaneda v. Partida, 430 U. S., at 494 n. 13. Inasmuch as there is no evidence in the record of the number of foremen appointed, it is not possible to perform the calculations and comparisons needed to permit a court to conclude that a statistical case of discrimination had been made out, id., at 496-497, n. 17, and proof under the "rule of exclusion” fails. Id., at 494 n. 13; see Hernandez v. Texas, 347 U. S., at 480.¹²

Comparison of the proof introduced by respondents in this case with the proof offered by defendants in cases where this Court has found that a prima facie case was made out is most instructive. In Norris v. Alabama, 294 U. S. 587 (1935), for example, the defendant proved his case by witnesses who testified as to the number of Negroes called for jury duty. The evidence in support of the prima facie case was summarized by the Court:

“It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years. Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson County. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect. One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had ‘never known of a single instance where any negro sat on any grand or petit jury in the entire history of that county.’ ” Id., at 591.

See Castaneda v. Partida, 430 U. S., at 495-496; Eubanks v. Louisiana, 356 U. S. 584, 586-587 (1958); Reece v. Georgia, 350 U. S., at 87-88; Hill v. Texas, 316 U. S., at 402-404.

The comparison of the evidence in Norris and in the other cited cases stands in stark contrast with the evidence in the present case. All that we have here to establish the prima facie case is testimony from two former foremen and from a briefly serving present foreman that they had no knowledge of a Negro’s having served. There is no evidence that these foremen were knowledgeable about years other than the ones in which they themselves served. And there is no evidence to fill in the gaps for the years they did not serve. In contrast to Norris, there is no direct assertion that for long periods of time no Negro had ever served, or that officials with access to county records could state that none had ever served. And there is no basis in the record upon which to determine that, even assuming no Negro had ever served as foreman, that fact statistically was so significant as to support an inference that the disparity between the Negroes serving and the Negro population in the county was the result of discrimination in violation of the Fourteenth Amendment.

It thus was error for the District Court to have concluded initially that respondents made out a prima facie case. And it was error, as well, for the Court of Appeals to have reached the same final conclusion. The State, however, under questioning at oral argument, tended to concede that the finding that a prima facie case had been established was correct (“we did not contest that”), Tr. of Oral Arg. 6-7, and did the same in its brief, although there it described the proof as “very questionable.” Brief for Petitioner 26.

Normally, a flat concession by the State might be given effect. But the inadequacy of respondents’ proof is plain. And the error of the Court of Appeals in exaggerating the extent of that proof is equally plain. We decline to overlook so fundamental a defect in respondents’ case.¹³

Accordingly, we hold that, as a matter of law, respondents failed to make out a prima facie case of discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment with regard to the selection of the grand jury foreman. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Chief Justice Burger and Mr. Justice Eehnquist join only Parts I, III, and IV of the opinion, and Mr. Justice White and Mr. Justice Stevens join only Parts I and II.

1

The Constitution of Tennessee requires that any prosecution for the crimes with which respondents were charged be instituted by presentment or indictment by a grand jury. Tenn. Const., Art. I, § 14.

2

In Tennessee, the grand jury is composed of 12 grand jurors, Term. Code Ann. §40-1501 (1975), and a foreman or forewoman who “shall be the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.” §40-1506 (Supp. 1978). The foreman or forewoman is appointed for a term of two years by the judge of the court having criminal jurisdiction in the county. Ibid. There is no limitation on reappointment. The foreman or forewoman must be at least 25 years of age, “shall be a good and lawful man or woman,” and possess all the other qualifications required of Tennessee jurors. § 40-1507 (Supp. 1978). See § 22-101 (Supp. 1978).

The members of the grand jury, other than the foreman or forewoman, are selected through the operation of the “key man” system, whereby three jury commissioners compile a list of qualified potential jurors from which the grand jurors are selected at random. See §§ 22-223 to 22-228 (Supp. 1978); §§40-1501 and 40-1502 (1975). Twelve members of the grand jury must concur in order to return an indictment. § 40-1706 (1975). The foreman or forewoman may be 1 of the 12. Bolen v. State, 554 S. W. 2d 918, 920 (Tenn. Crim. App. 1976). The foreman or forewoman acts as chairman or “presiding officer.” State v. Collins, 65 Tenn. 151, 153 (1873). He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury. Tenn. Code Ann. §§ 40-1510, 40-1622, 40-1706, and 40-1709 (1975 and Supp. 1978). The absence of the foreman's endorsement makes an indictment “fatally defective.” Bird v. State, 103 Tenn. 343, 344, 52 S. W. 1076 (1899).

3

In Castaneda v. Partida, we noted that among the eases in which the Court had applied this principle in circumstances involving grand jury-discrimination were Bush v. Kentucky; Carter v. Texas, 177 U. S. 442 (1900); Rogers v. Alabama, 192 U. S. 226 (1904); Pierre v. Louisiana, 306 U. S. 354 (1939); Smith v. Texas, 311 U. S. 128 (1940); Hill v. Texas, 316 U. S. 400 (1942); Cassell v. Texas, 339 U. S. 282 (1950); Reece v. Georgia, 350 U. S. 85 (1955); Eubanks v. Louisiana, 356 U. S. 584 (1958) ; Arnold v. North Carolina, 376 U. S. 773 (1964); and Alexander v. Louisiana.

4

In view of the disposition of this case on the merits, we may assume without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire. See Carter v. Jury Comm’n, 396 U. S. 320, 338 (1970).

5

Title 18 U. S. C. § 243 provides:

“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.”

6

The State makes a variation of this argument by contending that any constitutional error that occurred in the selection of the foreman of the grand jury is “now moot procedural error which had no effect on the integrity of the trial,” Brief for Petitioner 29, and so was harmless beyond a reasonable doubt in light of the subsequent conviction by a properly constituted petit jury.

7

The fact that there is no constitutional requirement that States institute prosecutions by means of an indictment returned by a grand jury, see Hurtado v. California, 110 U. S. 516 (1884), does not relieve those States that do employ grand juries from complying with the commands of the Fourteenth Amendment in the operation of those juries.

8

There is no contention in this case that respondents sought to press their challenge to the grand jury without complying with state procedural rules as to when such claims may be raised. See Francis v. Henderson, 425 U. S. 536 (1976). Nor do they seek to press this challenge after pleading guilty. See Tollett v. Henderson, 411 U. S. 258 (1973).

9

The Stone v. Powell issue was raised by petition for rehearing in the Court of Appeals. App. 142. In denying that petition, the court stated “that the issues raised therein were fully considered upon the original submission and decision of this case.” Id., at 151. In its opinion denying respondents’ motion for amendment of judgment, the District Court found that its original ruling denying the writ was bolstered by the decision in St one. App. 125.

10

The record indicates that one grand juror was in Florida at the time of the hearing. App. 27.

11

The 1970 census figure was 32.44%. Bureau of the Census, 1970 Census of Population, Characteristics of the Population, Part 44 Tennessee, Table 35, p. 124.

12

Respondents urge us to fill the gap in their proof by reference to the history of race relations in Tennessee and the fact that the State in past years practiced de jure discrimination against Negroes in many ways. We decline to do this. Reference to history texts in a case of this kind does not supply what respondents failed to prove. If it were otherwise, one alleging discrimination always would be able to prove his case simply by referring to the history of discrimination within the State. The Court’s cases, however, make it clear that inore is required to establish a violation of the Equal Protection Clause of the Fourteenth Amendment.

13

The State in this ease apparently places no reliance on 28 U. S. C. § 2254 (d), which provides in relevant part:

“[A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear . . .—

“(1) that the merits of the factual dispute were not resolved in the State court hearing

See LaVallee v. Delle Rose, 410 U. S. 690 (1973).