State v. Madison

213 A.2d 880, 240 Md. 265, 1965 Md. LEXIS 451

• Court: Court of Appeals of Maryland
• Decided: November 5, 1965
• Docket: [No. 408, September Term, 1965.]
• Status: Published

Opinions

Oppenheimer, J.,

delivered the majority opinion of the Court. Horney and Barnes, JJ., dissent. Dissenting opinion by Horney, J., at page 275, infra.

In Schowgurow v. State, 240 Md. 121, 213 A. 2d 475, we held that because of the decision of the Supreme Court of the United States in Torcaso v. Watkins, 367 U. S. 488 (1961), reversing the decision of this Court, the provision of Article 36 of the Maryland Declaration of Rights requiring demonstration of belief in God as a qualification for service as a grand or petit juror was in violation of the Fourteenth Amendment to the United States Constitution. We held, further, that our decision was not to apply retroactively except for convictions which had not become final before rendition of our opinion. In this case, Madison had been indicted in Baltimore City, for statutory rape, by a grand jury which, it has been stipulated, was impaneled from persons who, as a condition of their service as jurors, were required to show their belief in the existence of God. Madison pled not guilty. He had not been tried at the time our opinion in Schowgurow was rendered. He moved to dismiss the indictment and the presentment returned against him. Madison is a member of the Apostolic faith who believes in the existence of a Supreme Being. Schowgurow was a Buddhist whose religion does not teach that belief. The State contends that Madison is not entitled to question the validity of the indictment because he is not a member of the class unconstitutionally excluded from the grand jury which indicted him.

Arguments on the motion were had before Judge O’Donnell in the Criminal Court of Baltimore. He granted the motion, the State appealed, and because of the importance of the case in the administration of justice in Maryland, with the consent of the parties, we heard the appeal within a week. After argument, we affirmed Judge O’Donnell’s dismissal of the indictment by per curiam order. The reasons for our order follow.

In his clear and thorough oral opinion, Judge O’Donnell pointed out that, as a result of Schowgurow, under the decisions of the Supreme Court, the grand jury which indicted Madison was not selected in accordance with law; that the unlawful method of its selection was not a mere “harmless irregularity” but a violation of the Federal Constitution; and that, under our basic law, Madison’s timely right to object need not have any ground other than the fact that he was indicted by that grand jury. We agree.

Supreme Court decisions requiring that the defendant be a member of the excluded class in order to have standing to attack the constitutionality of the method of jury selection under a law nondiscriminatory on its face are not here in point.¹ In Schowgurow, we pointed out that, in such cases, “the question was whether, under a law, nondiscriminatory on its face, through administration or practice, there had been exclusion as a matter of fact. Here, there has been systematic exclusion for over a century by the mandate of the Maryland Constitution.”

Where, as here, the unconstitutional discrimination is an integral part of the governing law, a defendant in a criminal case whose conviction has not become final is not required to show that he is prejudiced by the application of the law. Every person accused of crime has the right to be tried under what has been determined to be the law of the land. In Schowgurow, the State, as here, contended there had been no showing of actual prejudice. We held that where the system of jury selection on its face provides for illegal discrimination and exclusion, an actual showing of prejudice is unnecessary. It is the danger of abuse resulting from the method of selection which renders it unconstitutional. We pointed out that the exclusion of non-believers was not only authorized but demanded by the Maryland Constitution and that the resulting danger of abuse, under the decisions of the Supreme Court, obviates any need to show individual prejudice.

Almost a century ago, this Court held that, when the method of selection of a grand jury is clearly invalid, the challenge of a defendant to his indictment by that body must be sustained, without any showing of prejudice. Clare v. State, 30 Md. 164 (1869). In that case, the defendant pleaded in abatement that the mandates of the law had not been followed in the selection of the grand jury, because its members had been selected, not by the judges as the law required, but by a court clerk. The lower court found these allegations to be factually correct, but held they were mere informalities, not fatal defects. The pleas were overruled and the defendant was convicted. On appeal, we reversed the judgment of conviction, holding that the lower court erred in overruling the pleas. The defendant, Clare, had not alleged or proved any specific prejudice as to him in the unlawful method of selection. We said, however:

“Under any government of law the trial of persons accused of crime, from its commencement to the conclusion, should be scrupulously conducted according to the requirements of the law. Not only the sacred administration of public and private justice, but the good order of the community, the security and protection of life, liberty and property, cannot be preserved, except by the inflexible maintenance and impartial enforcement of the statutory, as well as the fundamental laws of the land.” 30 Md. at 178.

In State v. Vincent, 91 Md. 718, 47 Atl. 1036 (1900), the appellee was indicted for perjury. He demurred to the indictment, alleging, inter alia, that the indictment showed on its face that the grand jury was composed of only 22 persons, when the law required 23 members. The lower court sustained the demurrer and quashed the indictment, and, on appeal, we affirmed. In Vincent, as in Clare, there was no allegation or showing of individual prejudice to the person indicted. We held that the invalid omission of the twenty-third juror of itself created a presumption of prejudice, and quoted the statement in Clare that government under law requires that the trial of persons accused of crime be conducted according to, the law of the land.

In Walter v. Indiana, 208 Ind. 231, 195 N. E. 268 (1935), the appellant had been convicted of embezzlement. He had unsuccessfully challenged the array of the jury which tried him on the ground that the commissioners who selected the names to be drawn as jurors had purposely and intentionally excluded the names of women. The state statute required that the names be, selected from the names of all qualified voters, which the court construed to mean there could be no exclusion because of sex. The exclusion of women by the jury commissioners was admitted. The Supreme Court of Indiana reversed the judgment; it held that the lower court erred in overruling the challenge to the array, even though the appellant was not a member of the class improperly excluded, and even though he showed no specific prejudice. The court said:

“A jury not organized in accordance with the statute is an unlawful jury, and in support of a challenge it is not necessary to show that the members of the jury are not qualified jurors * * *

“It does not suffice to say that appellant can not show that his substantial rights were impaired, or that the jurors were biased or prejudiced against him, or that he did not have a fair trial * * * This right [the appellant’s right to have the jury selected without illegal exclusion of any class] may not legally be denied, and if it is denied we must presume that the defendant was prejudiced thereby.” 208 Ind. at 236-37.

Walter was cited with approval in Thiel v. Southern Pacific Co., 328 U. S. 217 (1946). In that case, a civil action for damages had been brought in a United States District Court. The petitioner, a salesman, moved to strike the entire jury panel on the ground that the jury commissioners had deliberately and intentionally excluded from the jury lists all persons who worked for a daily wage. The exclusion was admitted, but the lower court denied the challenge, and the jury returned a verdict for the respondent. On appeal, the Supreme Court reversed on the ground that petitioner’s motion to strike the panel should have been granted. The Court acted in the exercise of its power of supervision over the administration of justice in the federal courts.² It said, “On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class.” 328 U. S. at 225.

In Ballard v. United States, 329 U. S. 187 (1946), the petitioners had been indicted and convicted in a District Court for using and conspiring to use the mails to defraud. Both the grand and petit juries had been drawn from panels from which women admittedly had been systematically excluded. The defendants had duly moved to quash the indictments and to challenge the array of petit jurors. The Court reversed the convictions, acting, as in Thiel, in the exercise of its power of supervision over the administration of justice in the federal courts. In its opinion, the Court said that:

“[R]eversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U. S. 128, or an economic or social class, Thiel v. Southern Pacific Co., supra, deprives the jury system of the broad base it was designed by Congress to have in our democratic society * * * 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.” 329 U. S. at 195.

In Cassell v. Texas, 339 U. S. 282, 287 (1950), the Court was faced with a problem of state action. It reversed the conviction because the state trial court had denied the appellant’s motion to quash the indictment on the ground there had been an unconstitutional discrimination through the selection of white men only on the grand jury that indicted him. While Cassell was a Negro, the Court said: “An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.”

In Allen v. State, 110 Ga. App. 56, 137 S. E. 2d 711 (1964), referred to in Schowgurowi, the defendant, a white man, had moved to quash the indictment against him and had challenged the array of traverse (petit) jurors on the ground that Negroes had been systematically and deliberately excluded from serving as grand and traverse jurors. The lower court assumed the defendant’s allegations to be true, but denied his motion. The case was transferred to the Georgia Court of Appeals. The court held that the trial court erred in overruling the defendant’s motion and challenge and reversed. The decision rested on two separate grounds. The court said that, were it necessary to show prejudice, judicial notice might be taken that the defendant, who was active in promoting participation in government by Negroes, would be the object of prejudice. It also held, however, citing Thiel, that it was unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class because the exclusionary practice resulting in the failure of the jury to represent a cross-section of the community is condemned by the Fourteenth Amendment. On this phase of the case, the court said:

“We are of the opinion that any system that results in the consistent selection of jurors from a group or portion only of those available for service in that office, rather than from those available without discrimination, does not accord to any defendant the type of jury to which the law entitles him.” 110 Ga. App. at 62.

In Schowgurow it was held that because of the Supreme Court’s decisions the exclusion of persons from juries because they did not believe in God wras invalid. By that decision, in all pending and future cases, indictments by grand juries and criminal trials by petit juries selected under the exclusionary method formerly prescribed by Article 36 of our Declaration of Rights, were declared defective. As Clare and Vincent make clear, once it is established that the method of the grand jury’s selection is unconstitutional, any accused indicted by such a jury has the right to have the indictment dismissed. He has this right, not because of any individual prejudice to him but because, under the basic law of our land, all persons accused of crime have the right to be tried in accordance with the requirements of our legal system.

The Supreme Court’s decision in Torcaso, which we held in Schowgurow rendered the exclusionary mandate of Article 36 of our Declaration of Rights invalid, rested upon the establishment of religion clause of the First Amendment to the Federal Constitution, made applicable to the states through the Fourteenth. Madison’s right to challenge his indictment however, after Torcaso and Schowgurow, rests upon the due process and equal protection clauses of the Fourteenth Amendment and upon the law of the land provision of Article 23 of the Maryland Declaration of Rights. When the law of the land has been made clear (even when, as here, it is established by the reversal by the Supreme Court of a decision of this Court) a person accused of crime, to be entitled to due process, does not have to show that he would be injured if due process is lacking. The right to be tried in accordance with the law is the constitutional privilege of every man.

Equal protection of the laws, as well as due process, is involved. Under the State’s contention, while Schowgurow, a Buddhist, was held entitled to a new trial because he was indicted and tried by juries unconstitutionally selected, Madison, a member of the Apostolic faith, could not object to his indictment by a grand jury selected in the same unconstitutional manner. The only difference between the two men, in this respect, is the nature of their religious beliefs. Discrimination because of opinions about religion is one of the classic examples of denial of the equal protection of the laws. Niemotko v. Maryland, 340 U. S. 268, 272-73 (1951); Juarez v. State, 102 Tex. Crim. 297, 303-04, 277 S. W. 1091 (1925). If we were to uphold the State’s contention in this case, the effect would be that pending indictments against persons who believed in a Supreme Being could not be successfully challenged, while indictments against others who do not have that belief would be dismissed. There would, in effect, be an unconstitutional discrimination in favor of non-believers as against believers.

The State points to the fact that a decision in its favor in this case would materially reduce the number of indictments which must be rebrought. We made it clear in Schowgurow that the decision in that case, for the reasons of public policy in the administration of justice therein stated, with the exception noted, is to apply only prospectively. Nevertheless, we recognize that there will be some interference, for the time being, with the expeditious disposition of pending criminal cases.³ This additional, if temporary, burden upon our courts and the State results because, under the decision of the Supreme Court in Torcaso, the fundamental principles of due process and the equal protection of the laws require that all accused persons in pending criminal cases shall have the right to ask that they be indicted and tried by juries selected in the manner which the Supreme Court’s decision has made necessary. We pay a price for the federal nature of our government, but, without it, we would not be a nation. Under our governmental system, the decisions of the Supreme Court must be controlling even when, as here, the decision makes invalid a long-established provision of the Maryland Constitution, previously held valid by this Court.

1 . For example, in Fay v. New York, 332 U. S. 261 (1947), the petitioners had attacked the constitutionality of the special or so-called “blue ribbon” jury as used by state courts in the State and County of New York. The Court did not find any constitutional offense in the statutory standards prescribed for the special panel and referred to the fact that the petitioners were not members of any excluded class only in connection with their claim that the procedure under which the special juries were selected was unconstitutional because of deliberate administrative exclusion of certain classes of persons, which, the Court found, had not been proved. Brown v. Allen, 344 U. S. 443 (1953) involved only the operation of the method used by North Carolina in selecting juries; there was no unconstitutional discrimination in the statute. In Rawlins v. Georgia, 201 U. S. 638 (1906), the plaintiffs in error contended, not that there was an unconstitutional exclusion of classes from jury service in the statute, but that the exclusions were made by ^ the jury commissioners; the Court held that, while it did not appear that any of the defendants belonged to any of the excluded classes, the exclusion was not the result of race or class prejudice. In cases such as Norris v. Alabama, 294 U. S. 587 (1935) and Hernandez v. Texas, 347 U. S. 475 (1954) in which the Court considered the evidence as to prejudice against the race or class of which the petitioner was a member, the unconstitutional exclusion was the result of the administration of the statutes which were valid on their face, and did not, as here, result from exclusion required by the basic law.

2 . In McNabb v. United States, 318 U. S. 332, 340-41 (1943) Mr. Justice Frankfurter discussed the relationship between the exercise of the Supreme Court’s power of supervision over the administration of justice in the federal courts and its review of state action in due process of law cases. He said:

“Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as ‘due process of law’ and below which we reach what is really trial by force. Moreover, review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction. Considerations of large policy in making the necessary accommodations in our federal system are wholly irrelevant to the formulation and application of proper standards for the enforcement of the federal criminal law in the federal courts.”

3 . William L. Marbury, Esq. president of the Maryland State Bar Association, has stated that: