Rose v. Mitchell, 443 U.S. 545 (1979)

Author: Justice Stewart

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Rose v. Mitchell, 443 U.S. 545 (1979)

MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, concurring in the judgment.

The respondents were found guilty beyond a reasonable doubt after a fair and wholly constitutional jury trial. Why should such persons be entitled to have their convictions set aside on the ground that the grand jury that indicted them was improperly constituted? That question was asked more than 25 years ago by Mr. Justice Jackson in Cassell v. Texas, 339 U.S. 282, 298 (dissenting opinion). It has never been answered.{1} I think the time has come to acknowledge that Mr. Justice Jackson’s question is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction.


A grand jury proceeding

is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.

United States v. Calandra, 414 U.S. 338, 343-344. It is not a proceeding in which the guilt or innocence of a defendant is determined, but merely one to decide whether there is a prima facie ease against him. Any possible prejudice to the defendant resulting from an indictment returned by an invalid grand jury thus disappears when a constitutionally valid trial jury later finds him guilty beyond a reasonable doubt.{2} In short, a convicted defendant who alleges that he was indicted by a discriminatorily selected grand jury is complaining of an antecedent constitutional violation that could have had no conceivable impact on the fairness of the trial that resulted in his conviction.

It is well settled that deprivations of constitutional rights that occur before trial are no bar to conviction unless there has been an impact upon the trial itself.{3} A conviction after trial, like a guilty plea, "represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267. See United States v. Blue, 384 U.S. 251, 255; cf. Stroble v. California, 343 U.S. 181, 197 ("illegal acts of state officials prior to trial are relevant only as they bear on petitioner’s contention that he has been deprived of a fair trial").

The cases in this Court dealing with unlawful arrest are particularly instructive. Unconstitutional arrests are unreasonable seizures of the person that violate the Fourth and Fourteenth Amendments. E.g., Terry v. Ohio, 392 U.S. 1. Yet an "illegal arrest or detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119. In Frisbie v. Collins, 342 U.S. 519, for example, a defendant had been forcibly abducted from one State and brought to another to stand trial, but the trial itself was fair, and the Court upheld his conviction. See also Mahan v. Justice, 127 U.S. 700; Ker v. Illinois, 119 U.S. 43.{4}

The cases in this Court specifically dealing with grand jury proceedings are equally instructive. In Costello v. United States, 350 U.S. 359, the Court sustained the conviction of a defendant who had sought to dismiss the charges against him on the ground that the indictment had been based exclusively upon inadmissible hearsay evidence. See also Holt v. United States, 218 U.S. 245. In Lawn v. United States, 355 U.S. 339, the Court held that a defendant could not avoid trial and conviction on the ground that the indictment had been procured by evidence obtained in violation of the Fifth Amendment.

[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, . . . or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination.

United States v. Calandra, supra at 345. Cf. Gelbard v. United States, 408 U.S. 41, 60 ("The `general rule’ . . . is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government `acquire[d] incriminating evidence in violation of the [rule],’ even if the `tainted evidence was presented to the grand jury’"); United States v. Blue, supra at 255 n. 3.


A person who has been indicted on the basis of incompetent or illegal evidence has suffered demonstrable prejudice. By contrast, the prejudice suffered by a defendant who has been indicted by an unconstitutionally chosen grand jury is speculative, at best, and more likely nonexistent. But there are, of course, other interests implicated when a State systematically excludes qualified Negroes from grand jury service. Such discrimination denies Negroes the right to participate equally in the responsibilities of citizenship. The compelling constitutional interest of our Nation in eliminating all forms of racial discrimination requires that no group of qualified citizens be excluded from participation as either grand or petit jurors in the administration of justice.

These interests can be fully vindicated, however, by means other than setting aside valid criminal convictions. This Court has held, for example, that Negroes can obtain injunctive relief to remedy unconstitutional exclusion from grand or petit jury service. Carter v. Jury Comm’n of Greene County, 396 U.S. 320; Turner v. Fouche, 396 U.S. 346. That remedy has the advantage of allowing the members of the class actually injured by grand jury discrimination to vindicate their rights without the heavy societal cost entailed when valid criminal convictions are overturned.{5} Moreover, Congress has made it a criminal offense for a public official to exclude any person from a grand or petit jury on the basis of his or her race. 18 U.S.C. § 243.{6} Defendants may also have pretrial remedies against unlawful indictments. But, as Mr. Justice Jackson stated in the Cassell case,

[i]t hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt to say that his indictment is attributable to prejudice.

339 U.S. at 302.

For all these reasons, I believe that a claim of discrimination in the selection of a grand jury or its foreman is not a ground for setting aside a valid criminal conviction. Accordingly, I concur only in the judgment.

1. Both advocates and opponents of broad federal habeas corpus relief have recognized the unusual role the Great Writ plays in our federal system. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463 (1963); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1330-1331 (1961)

2. Not only may the state claimant have a "rerun" of his conviction in the federal courts, but also there is no limit to the number of habeas corpus petitions such a claimant may file. The jailhouse lawyers in the prisons of this country conduct a flourishing business in repetitive habeas corpus petitions. It is not unusual to see, at this Court, a score or more of petitions file over a period of years by the same claimant.

3. Although the opinion of the Court discusses the extension of habeas corpus to claims of grand jury discrimination, this discussion is unnecessary in view of the Court’s conclusion that no prima facie case of discrimination was made out by respondents. Indeed, it may fairly be questioned whether Part II of the opinion is part of the holding of the Court, for not all of the four Members who join it support even the Court’s judgment.

4. The Court explicitly bases its extension of habeas corpus in this case upon its conclusion that the constitutional interests involved in a claim of grand jury discrimination are "more compelling" than those involved in other constitutional claims. See ante at 564. It is not clear, however, that it would be possible to cabin the Court’s rule to cases where racial discrimination is alleged. There are, of course, numerous constitutional challenges to grand jury indictments that have nothing to do with racial discrimination. The logic of the Court’s position may lead to the extension of habeas corpus to every conceivable constitutional defect in indictments.

5. As MR. JUSTICE STEWART points out, a federal statute makes it a crime to discriminate on the basis of race in the selection of jurors, 18 U.S.C. § 243, and both Government and private actions may be brought by those improperly excluded from jury service. See Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970). Furthermore, in the past, this Court has allowed a claim of grand jury discrimination to be made on direct appeal from a conviction. See Cassell v. Texas, 339 U.S. 282 (1950). But seen. 9, infra.

6. The Court suggests that "federalism concerns . . . are not present" when the fairness of an indictment is challenged on federal habeas, because

[f]ederal 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. [313,] 322 [(1880)].

Ante at 562. There is no logic to this reasoning. The mere fact that federal courts have reviewed some state court decisions for nearly a century hardly supports a conclusion that no federalism concerns exist. Nor does Virginia v. Rives support the Court’s argument. In that case, the petitioner challenged the composition of his petit jury, as well as that of the grand jury that had indicted him. Whenever the fairness of the petit jury is brought into question, doubts are raised as to the integrity of the process that found the prisoner guilty. See Cassell v. Texas, supra at 301-302 (Jackson, J., dissenting). Collateral relief therefore may be justified even though it entails some damages to our federal fabric. See infra at 586.

7. The Court implies that state trial judges cannot be trusted to rule fairly on the issue here presented, because they are involved administratively in t.he selection of the grand jury. Ante at 561, 563. This is a view I find wholly unacceptable. In numerous circumstances, trial judges are called upon to rule on the validity of their own judicial and administrative action. I know of no general constitutional rule requiring disqualification in such cases. I certainly would not accept an assumption at this point in our history that state judges in particular cannot be trusted fairly to consider claims of racial discrimination. See Schneckloth v. Bustamonte, 412 U.S. 218, 263-264, n. 20 (1973) (POWELL, J., concurring).

8. The Court also would justify collateral review of claims of grand jury discrimination because of the damage that such discrimination can do to the perceived integrity of the judicial system as a whole. But it ignores the damage done to society’s perception of the criminal justice system by allowing valid convictions to be reversed on collateral attack on the basis of claims having nothing to do with the defendant’s guilt or innocence. Moreover, any discriminatory action so notorious as to undermine the public’s faith in the fairness of the judiciary is likely to be remedied on direct review by the state courts, and by this Court.

9. Although I need not reach the question in this case, I find much of what MR. JUSTICE STEWART says persuasive on the question whether complaints concerning the fairness of indictment should survive conviction even for purposes of direct appeal. See ante, p. 574. In his dissenting opinion in Cassell v. Texas, Mr. Justice Jackson suggested that

any discrimination in selection of the grand jury in this case, however great the wrong toward qualified Negroes of the community, was harmless to this defendant.

339 U.S. at 304. Until today, this Court never has undertaken to answer Mr. Justice Jackson’s arguments in Cassell. Nor am I completely satisfied with today’s attempt. For purposes of this opinion, however, I shall assume that direct review of respondents’ claims was appropriate.

10. Finding no support in our prior decisions for today’s extension of habeas corpus, the Court considers only whether our decision in Stone v. Powell, 428 U.S. 465 (1976), forbids federal courts to grant habeas corpus in cases such as this. Stone, of course, did not address the proper method for presenting claims of grand jury discrimination, as it involved only claims under the Fourth Amendment exclusionary rule. Nonetheless, the Court overstates the differences between Stone and the present case. See ante at 560-564. To be sure, in Stone v. Powell, supra at 495 n. 37, we emphasized that the Fourth Amendment exclusionary rule was a "judicially created remedy, rather than a personal constitutional right." We did so, however, only in rejecting the suggestion of the dissent that our decision would lead to a "drastic withdrawal of federal habeas jurisdiction," 428 U.S. at 517, the extent of which might be unlimited. Stone recognized that the Fourth Amendment exclusionary rule was not designed to protect the right of an individual to be free from unjust conviction. Thus, the justification for undermining the finality of state court judgments that exists in many habeas corpus actions was absent. Properly understood, therefore, the rationale of our decision in Stone is not only consistent with denying collateral relief for claims of unfair indictment, but actually presages such a limitation on habeas corpus. For, as I have stated in the text above, the right not to be indicted by a discriminatorily selected grand jury, like the right not to have improperly obtained, but highly probative, evidence introduced at trial, has nothing to do with the guilt or innocence of the prisoner.


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Chicago: Stewart, "Stewart, J., Concurring," Rose v. Mitchell, 443 U.S. 545 (1979) in 443 U.S. 545 443 U.S. 575–443 U.S. 579. Original Sources, accessed August 8, 2022,

MLA: Stewart. "Stewart, J., Concurring." Rose v. Mitchell, 443 U.S. 545 (1979), in 443 U.S. 545, pp. 443 U.S. 575–443 U.S. 579. Original Sources. 8 Aug. 2022.

Harvard: Stewart, 'Stewart, J., Concurring' in Rose v. Mitchell, 443 U.S. 545 (1979). cited in 1979, 443 U.S. 545, pp.443 U.S. 575–443 U.S. 579. Original Sources, retrieved 8 August 2022, from