Beck v. Washington (369 U.S. 541)/Dissent Douglas

by William O. Douglas

United States Supreme Court

369 U.S. 541

Beck  v.  Washington

 Argued: Nov. 14, 1961. --- Decided: May 14, 1962

Mr. Justice DOUGLAS, dissenting.

Although, according to Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, Washington need not use the grand jury in order to bring criminal charges against persons, it occasionally does use one; and a grand jury was impaneled in this case. It is well settled that when either the Federal Government or a State uses a grand jury, the accused in entitled to those procedures which will insure, so far as possible, that the grand jury selected is fair and impartial. ^[1] That is the reason why the systematic exclusion of Negroes from grand jury service infects the accusatory process. See Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. The same principle was applied in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, when Mexicans were systematically excluded from duty as grand and petit jurors. The same principle would also apply 'if a law should be passed excluding all naturalized Celtic Irishmen' from grand jury duty. Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664.

Racial discrimination is only one aspect of the grand jury problem. As stated in Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 373, 50 L.Ed. 652, '* * * the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.' We emphasized in Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 817, 95 L.Ed. 1118, the importance of 'the continuing necessity that prosecutors and courts alike be 'alert to repress' any abuses of the investigatory power' of the grand jury. ^[2] We recently stated in Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397, that:

'The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' (Italics added.) The Washington Supreme Court, which affirmed this judgment of conviction, did so by an equally divided vote. The four voting for affirmance stated that absent a statutory requirement, 'bias or prejudice' on the part of the grand jury was irrelevant. 56 Wash.2d 474, 480, 349 P.2d 387, 390.

The case of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, is offered as justification for the use of an unfair procedure in bringing this charge against petitioner. We there held that forcibly abducting a person and bringing him into the State did not vitiate a state conviction where the trial was fair and pursuant to constitutional procedural requirements. Here, however, a part of the criminal proceeding is itself infected with unfairness. Whether it was necessary to use the grand jury is immaterial. It was used; and the question is whether it was used unfairly. The case is, therefore, like those where procedures, anterior to the trial, are oppressive. A notorious example is an unlawful arrest or the use of detention by the police to obtain a confession. See, e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. Another example is denial of the right to counsel. As stated in Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, that right extends to a period anterior to the trial itself 'when consultation, thoroughgoing investigation and preparation' are 'vitally important.' Cf. Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (concurring opinion).

Could we possibly sustain a conviction obtained in either a state or federal court where the grand jury that brought the charge was composed of the accused's political enemies? If we did, we would sanction prosecution for private, not public, purposes. Whenever unfairness can be shown to infect any part of a criminal proceeding, we should hold that the requirements of due process are lacking.

A dissent in Cassell v. Texas, 339 U.S. 282, 298, 70 S.Ct. 629, 639, 94 L.Ed. 839, said, 'It 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.' Id., at 302, 70 S.Ct. at 639. But the Court did not agree. Since a grand jury was used to indict, the Court held the grand jury to constitutional requirements. We should do the same here. As we stated in Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559:

'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 to 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.'

A grand jury serves a high function. As stated in United States v. Wells, D.C., 163 F. 313, 324:

'It is a familiar historical fact that the system was devised to prevent harassments growing out of malicious, unfounded, or vexatious accusations. That it serves the purpose of allowing prosecutions to be initiated by the people themselves in no way detracts from the fact that it still stands as a safeguard against arbitrary or oppressive action.'

The same view was stated by Mr. Justice Field, sitting as Circuit Justice:

'In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government.

Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it come from government or be prompted by partisan passion or private enmity.' Charge to Grand Jury, 30 Fed.Cas. 992, 993, No. 18,255.

One who reads this record is left with doubts of the most serious character that the procedure used in the selection of the grand jury was fair in light of the unusual conditions that obtained at the time.

Petitioner on March 26 and 27, 1957, appeared before a Senate Committee in Washington, D.C., and during his questioning invoked the Fifth Amendment 150 times.

On May 2, 1957, petitioner was indicted in Tacoma by a federal grand jury for income tax evasion.

On May 8, 1957, petitioner was recalled to testify before the Senate Committee and during another long interrogation invoked the Fifth Amendment about 60 times.

During these hearings the Committee members made various comments concerning petitioner. As Judge Donworth, speaking for himself and three other members of the Supreme Court of Washington, said:

'These comments, which were extremely derogatory to appellant, were widely circulated by all news media throughout the United States, and particularly in the Seattle area. In these comments, appellant was characterized as a thief, and it was asserted that he was guilty of fraud and other illegal conduct with respect to his management of the affairs of the teamsters' union as its principal officer in the eleven western states, and later in his position as its international president.

'These conclusions and opinions (particularly those expressed by Senator McClellan, the chairman of the committee) were displayed by local newspapers on the front page in prominent headlines. The following are a few of the comments which were referred to in such headlines which appeared in Seattle newspapers:

"Teamsters' Cash Kept Going to Beck after He Became Union President, Says Prober.' Seattle Times, March 23, 1957. * * *

"Beck Gives 'Black Eye' to Labor, Says Sen. McNamara.' Seattle Times, March 27, 1957.

"Senate Probe Lifts Lid on Beck Beer Business-Use of Union Money Related.' Seattle Post-Intelligencer, May 9, 1957.

'Substantial portions of the committee proceedings relating to these charges were also reproduced in the course of news broadcasts on local radio and television stations.

'The amount, intensity, and derogatory nature of the publicity received by appellant during this period is without precedent in the state of Washington. A Seattle newspaper carried a news item reporting that the switchboard of a local radio station that had broadcast the committee proceedings on the preceding day was jammed with calls, and that the officials of the station characterized the response to the broadcast on the part of the public as 'astounding,' and that such response was greater than that resulting from any other broadcast ever aired by them. The serious accusations made by United States senators in the committee hearings are generally regarded by laymen as being official charges (which appellant had refused to answer), and thus the impression was created among the general public that appellant had been found guilty of a crime.' 56 Wash.2d 474, 510-512, 349 P.2d 387, 408.

The grand jury which returned the indictment was convened on May 20, 1957.

The effect of the saturation of Seattle with this adverse publicity was summarized by Judge Donworth:

'The natural effect of this publicity was that, in the eyes of the average citizen, the character of appellant had been thoroughly discredited in the Seattle area on or before May 20, 1957.' 56 Wash.2d, at 512, 349 P.2d, at 408.

The trial court at the time of the selection of the petit jury referred to the publicity the case had received in the papers and over the radio and TV and sought to determine whether any jurors had become prejudiced or biased against the accused. The judge who impaneled the grand jury took no such precautions. He excused three who might have been prejudiced because they were or had been members of petitioner's union or of affiliated unions. He excused one employer who in reply to the question 'Are you conscious of any bias, prejudice or sympathy in this case at all?' said, 'That is pretty hard to answer.' Of the six he excused, two admitted prejudice. Not once did the judge inquire as to the intensive adverse publicity petitioner had received and its likely effect on each juror. He asked two types of questions. The one already noted, whether the juror was conscious of bias, etc., and the other one, 'Is there anything about sitting on this grand jury that might embarrass you at all?' It seems to me that the judge was derelict in failing to ascertain whether the amount of adverse publicity petitioner had received had prejudiced the jurors toward the case about to be presented. Although he made no such inquiry of any juror, he proceeded upon the assumption that the grand jury had full knowledge of the activities of the Senate Committee:

'We come now to the purpose of this grand jury and the reasons which the judges of this court thought sufficient to justify the expense to the county, and the inconvenience to and sacrifice by you, which this grand jury session will require.

'It seems unnecessary to review the recent testimony before a Senate Investigation Committee except to say that disclosures have been made indicating that officers of the Teamsters Union have, through trick and device, embezzled or stolen hundreds of thousands of dollars of the funds of that union money which had come to the union from the dues of its members. It has been alleged that many of these transactions, through which the money was siphoned out of the union treasury, occurred in King County. Such crimes, if committed, cannot be punished under Federal law, or under any law other than that of the State of Washington, and prosecution must take place in King County. The necessary criminal charges can only be brought in this county upon indictment by the grand jury or information filed by the prosecuting attorney.

'The president of the Teamsters Union has publicly declared that the money he received from the union was a loan which he has repaid. This presents a question of fact, the truth of which is for you to ascertain.

'You may find that many of the transactions happened more than three years ago; this would raise the question of the statute of limitations, which ordinarily bars a prosecution for larceny after three years. There are some instances, however, where the period is extended. This is a question of law and you should be guided by the advice of the prosecutors on this and similar questions. Your investigation may conceivably result in the adoption of better standards of conduct for union officials.'

No admonition was given that radio, television, and newspaper reports were not the gospel. No warning was made that one who invokes the Fifth Amendment does not admit guilt. No admonition was given that the deliberations should be free of bias or prejudice. The question is not whether one who receives large-scale adverse publicity can escape grand jury investigation nor whether the hue and cry attendant on adverse publicity must have died down before the grand jury can make its investigation. This case shows the need to make as sure as is humanly possible that one after whom the mob and public passion are in full pursuit is treated fairly, that the grand jury stands between him and an aroused public, that the judge uses the necessary procedures to insure dispassionate consideration of the charge.

The State of Washington uses the grand jury only occasionally, the normal method of accusation being by information. Whether grand jurors in other cases are screened for bias or prejudice does not appear. Yet on the assumption that they are not, Beck's objections should not be in vain. Whether the unfair device is used customarily or only once, it does not comport with the Due Process Clause of the Fourteenth Amendment.

I think the Court is correct in rejecting the general equal protection question on the merits. But I do think that a narrow phase of equal protection was raised and should be decided in petitioner's favor. ^[3] It is conceded that if Beck had been 'in custody or held to answer for an offense' he would have been entitled to challenge the grand jurors for prejudice. 56 Wash.2d, at 479, 349 P. 2d, at 390. To grant that class the right to challenge for prejudice and to deny it to those who are merely under investigation is to draw a line not warranted by the requirements of equal protection. I agree with the views of Judge Donworth, with whom Judges Finley, Hunter, and Rosellini concurred:

'I do not understand how it can be said, under the facts shown in this record, that the reason entitling a person in custody or held to answer for an offense to be investigated by an impartial and unprejudiced grand jury, does not apply equally well to appellant. It is axiomatic that all men are equal before the law and are entitled to the same rights under the same or similar circumstances.' 56 Wash.2d, at 528, 349 P.2d, at 418.

Notes

1. Since petitioner was not represented by counsel at the impaneling of the grand jury, his objection at the return of the indictment was timely. As stated in Crowley v. United States, 194 U.S. 461, 469-470, 24 S.Ct. 731, 734, 48 L.Ed. 1075:
2. See Morse, A Survey of the Grand Jury System, 10 Ore.L.Rev. 217.
3. This is not a case where decision is asked on a question not 'formally presented' by the petition for certiorari, as was true in General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 179, 58 S.Ct. 849, 851, 82 L.Ed. 1273. It appears from the record that the question of equal protection was a 'definite issue' decided by the Washington Supreme Court (Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477, 487, 32 S.Ct. 790, 792, 56 L.Ed. 1171); and in at least two places in the questions presented by the petition for certiorari that decision was challenged for denial of equal protection. This was clearly sufficient, as Rule 23(1)(c), 28 U.S.C.A. in haec verba, discourages detailed amplification of the questions presented:

'The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. * * *'

The petition states, inter alia:

'1. Where accusation is by a grand jury indictment, does a person (in this case a member and officer of a labor union who at the time of the grand jury proceedings was the subject of continuous, extensive and intensely prejudicial publicity) have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the charges and evidence considered by a grand jury which was fair and impartial or, at least, which was instructed and directed to act fairly and impartially?

'(a) Where petitioner was a member and officer of a labor union, and where prejudicial and imflammatory charges against him were being widely and intensively disseminated by all news media, did he have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the grand jury impaneled in a manner which would prevent or at least tend to prevent the selection of biased and prejudiced grand jurors?'

This is enough to bring the case within our rule that only the questions 'urged in the petition for certiorari and incidental to their determination will be considered on review.' Rorick v. Devon Syndicate, 307 U.S. 299, 303, 59 S.Ct. 877, 879, 83 L.Ed. 1303.

At least four of the judges below thought that the equal protection point treated in this dissent was an issue. For after referring to the Washington statute which gives those in custody or held to answer for an offense the right to an impartial and unprejudiced grand jury (56 Wash.2d, at 527-528, 349 P.2d, at 417) they stated: 'Until the legislature amends or repeals the statutory law, quoted and emphasized above, it must be applied with equal effect to every person whose conduct is under investigation by a grand jury pursuant to the court's charge to it.' 56 Wash.2d, at 530, 349 P.2d, at 419. That seems to me sufficient to bring this ruling within the statement in Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344, to the effect that 'There can be no question as to the proper presentation of a federal claim when the highest state court passes on it.'