Inequality in the Formation of Grand and Petit Juries


Inequality in the Formation of Grand and Petit Juries

DURING 1943, LATINOS WENT TOWARON TWO FRONTS. FIRST, U.S. LATINO soldiers displayed their courage and patriotism in Europe and in the Pacific Theater. Ironically, the barrios of East Los Angeles (East LA), California, and Texas provided the second front, where Latinos experienced the wounds that emanate from racial bigotry. Governor Earl Warren appointed a special commission to investigate the East LA racial conflict, which confirmed numerous civil rights violations (Acuna 1972, 207). During this same period, the Mendez v. Westminster School District case declared segregation of Latinos in public education unconstitutional.1 In 1947, Governor Warren approved the California legislature’s repeal of the segregation statute.2 Within four years, Warren witnessed two separate incidents of blatant discrimination against Latinos. Historians might consider how these experiences shaped Chief Justice Warren’s thinking when a decade later he authored two unanimous rulings, first in Hernandez v. Texas, which held systematic jury exclusion of Latinos violated their equal protection rights, and then in Brown v. Board of Education, which agreed with Mendez that separate education is “inherently unequal.”3

The Legally White Latino and the White Anglo Population

While legal construction dictates the white status of Mexican descent persons, the common understanding among the dominant white social group disagrees with this view (Haney-Lopez 1996, 8, 131). Psychologists and other scholars of the humanities have documented numerous factors involved in racial and ethnic identity development, as well as factors involved in social group membership and nonmembership.

The concept of race as historically used in legal proceedings refers to biological ancestry, but its social meaning is more diverse. According to Lorie R. Salinas, PhD, a graduate of the University of Miami, Department of Educational and Psychological Studies,


While the intent in law may be to preserve the neutrality of the word “race” when used, its use in language cannot separate itself from its social constructs. The term “socioracial” more accurately reflects how individuals use “race” to communicate multiple pieces of information about culturally transmuted, self- and other-imposed categorizations; these categorizations might not only refer to one’s biology, but also to ethnicity, socioeconomic status, historical or present treatment by oneself or others to oneself or others, and/or other representative or suggestive features of a person which function to describe group, as opposed to individual, differences. These descriptions, whether representative or suggestive of being part of a group, also maintain or change the status quo of the construct held for “race” in society in how they are used, such as through differential processes of reinforcement within or across groups. “Socioracial” owns this process by which humans both derive and transmute meaning for “race.”4


Even though legally classified as white, U.S. Latinos of Mexican descent historically encountered Anglo-perpetrated discrimination. Anglos viewed Mexicans as belonging to a group other than white (Gomez 2007, generally). U.S. Census officials confirmed this attitude by designating “Mexicans” as a separate race in 1930. Also contributing to the social construction of race among Latinos, the largest Latino group, Mexican Americans, have historically identified as La Raza (the race). Notwithstanding these racist acts, Latinos continued with their duty as Americans to volunteer and engage in heroic military service (Garcia 1952).

Latinos also frequently tried to elect representatives of their choice. Unfortunately, racially discriminatory tactics obstructed Latinos. A glorious moment finally arrived when President Obama credited Latinos with his projected reelection (Dunham 2012, A5). Yet, the reality is that anti-Latino discrimination has alienated many from the political process. In some areas, Latinos could not participate in elections reserved for whites unless they were of “full Spanish blood” (Perales 1937, 2:93). Second, election administrators, all of Anglo descent in early years, imposed obstacles such as the poll tax, citizenship, and literacy tests. As a result, many just gave up and did not vote, concluding that their vote would not count anyway.

Fifty years after the treaty that transferred Mexican land to the United States, the citizenship eligibility and racial status of Mexicans surfaced. A federal judge concluded in In re Rodriguez that a Mexican resident alien could legally be admitted to naturalization as a white person. The Fourteenth Amendment in 1868 granted citizenship to all persons born in the United States and effectively made all recently freed slaves citizens as well. Since only white persons qualified under the statutes in effect, the government’s lawyer contended that Rodriguez’s color barred his naturalization. The judge acknowledged that a “strict scientific classification of the anthropologist”5 would probably exclude Rodriguez from classification as a white person.

On the other hand, the Rodriguez judge focused on the terms of the Treaty of Guadalupe Hidalgo as applied to Mexicans who remained in the conquered land. The treaty’s Article VIII declared that Mexicans may either retain the title and rights of Mexican citizens or “acquire those of citizens of the United States.”6 Those Mexicans who did not affirmatively assert citizenship “shall be considered to have elected to become citizens of the United States.”7 Under these circumstances, the judge decided that Rodriguez possessed the requisite qualifications for citizenship, adding that pursuant to the treaty, thousands of Mexicans had been granted American citizenship.8

Anti-Latino Prejudice: Then and Now

Beginning early in American history, Anglo-Latino relationships, with Mexicans in particular, involved intense racial, ethnic, and socioeconomic tensions. The anti-Mexican experience, particularly as it relates to racism, has been so passionate that the word “Latino” or “Hispanic” is often interpreted to connote “Mexican.” While each Latino ethnic group is distinct, historians and scholars unquestionably have documented the extensive anti-Mexican rhetoric in our media and historical literature (Bender 2003, 135). Overt racist practices have decreased, but today the subtle political and official decisions that disadvantage Latinos are often difficult to detect. Mob violence, police excessive and deadly force, as well as lynchings of Latinos occurred in the nineteenth century. The police abuses continued into the twentieth century and incredibly continue to appear in the twenty-first century (Archibold 2010).

Notwithstanding the hardships faced by the early Latinos in a land they once owned, in 1848 they assumed the status of a “conquered people” (Acuña, 1972, iii). Some left the territory and returned to what was left of Mexico after the taking by U.S. forces of a substantial amount of their territory. However, most residents of Mexican descent stayed and experienced the adversities of life in a land where the dominant European white population rejected the mestizo population as equals. Whites openly expressed words of disdain against Mexicans and other Latinos quite passionately, attitudes that carried into the 1930s (Taylor 1934, 36, 325–29) and even into the twenty-first century (Reyes 2008; Shifrel 2010; Sorrentino 2010).

What could bring any group of people to such levels of hostility? Some claim the hatred provoked by Mexican atrocities at the battles of Goliad and the Alamo in 1836 exacerbated the prejudice that Samuel Lowrie documented to have existed in the 1820s, a decade before the Battle of the Alamo (Lowrie 1932, 120–24). This historical and prolonged dislike of Latinos by many whites paved the way for the “Remember the Alamo” war cry. These same words shockingly surfaced in 2006 on a placard carried by an anti-immigration protester at Houston’s Mexican Consulate (Carrera 2006).

This stereotypical grouping is not a contemporary phenomenon. Referring to the gold rush era, mostly from 1849 to 1852, historian Leonard Pitt (1966, 53) observed that regardless of when the Latino arrived in the territory or where he came from—whether Chile, Peru, or Mexico—all “the Spanish-speaking were lumped together as ‘interlopers’ and ‘greasers.’” The term “greasers” has unfortunately been assigned to the Mexican population by racists (de Leon 1983, 87–102).

The same prejudice that influences bigots to dislike Latinos in general and Mexicans in particular can unfortunately place all U.S. Latinos at risk of being viewed as “Mexicans.” In 2008, anti-Mexican prejudice precipitated hate crimes against at least three Latinos (one Mexican and two Ecuadorians). In one of these cases, for example, seven teenagers purportedly set out on a mission to “get a Mexican” in Patchogue, New York. What resulted from this conspiracy was the death of Marcelo Lucero, an Ecuadorian immigrant, from a severe beating and stabbing (Reyes 2008, 9A). At least two other Latinos died during 2008 from racially motivated attacks (Fernandez 2010, A26).

The Legal Path to Equality in the Grand and Trial Jury Systems

Due to this history of anti-Latino discrimination, the eventual 1954 ruling in Hernandez v. Texas came as no surprise. What was amazing is that this favorable ruling took so long to attain. Essentially, officials for the State of Texas exploited the notion that persons of Latino descent asserted their legal status as whites. Notwithstanding, state officials and the dominant Anglo population treated Latinos in ways similar to the mistreatment committed against African Americans, including systematic exclusion from grand and petit juries (Perales 1974, 139–227).

Latinos and African Americans have complained of jury discrimination for over one hundred years. In 1880, the Supreme Court in Strauder v. West Virginia ruled that an African American’s right to equal protection had been violated when the state prosecuted him before a jury from which members of his race had been purposely excluded.9 Twenty years later, the Texas Court of Criminal Appeals summarily denied the petition of Gregorio Cortez that Mexicans, “members of his race,” not be purposely excluded from the grand jury.10

At the start of the 1900s, Texas courts did not utilize the Latino white-race concept to save prosecutors and state officials from the exclusion of Latinos from the grand and trial jury process. Instead, the judges essentially denied the existence of discrimination, accepted the unsupported claims that Latinos lacked representatives since the group did not have literate and otherwise linguistically capable persons,11 and agreed with officials that possibly eligible Latinos were “ignorant” and had customs different from those of whites.12

While legally white, at the social level Latinos received the separate “colored” race treatment by governmental and educational entities and private businesses. Prior to the passage of the 1964 Civil Rights Act, Caucasians freely entered restaurants, but these public places denied Latinos service in Texas and the Southwest (Perales 1974, 139–227). Additionally, Texas constitutionally segregated whites and blacks in public schools.13 While the Texas constitution specifically authorized the separate educational facilities for “colored” children, the segregation of Latinos, as conducted by the schools in Bastrop and more than a hundred other communities, nonetheless resulted from “regulations, customs, usages, and practices”14 that amounted to state action (Salinas 2003a, 166–68). The Latino school-segregation practices in Arizona, California, and Texas may have derived from Gong Lum v. Rice, a 1927 decision that classified a Chinese-descent citizen as “colored” and excluded her from a white school.15 While no case or documentation has been discovered to support this premise, the segregation treatment Latinos received was quite similar to that accorded to the Chinese American child.

The Grand Jury System

Even though the United States has what is regarded as one of the fairest systems in the world, our American criminal justice system suffers when police and prosecutorial misconduct corrupts either the grand jury indictment or the direct charge, i.e., the information system. The grand jury, whether at the federal or state level, plays a critical role. At both jurisdictional levels, the purpose of the grand jury centers on the determination of probable cause. In other words, is there sufficient evidence that the defendant committed a crime?

If the prosecutor strays from her duty, the grand jury can serve as a “shield” against vindictive or erroneous prosecutions and decline a finding of probable cause. On the other hand, the grand jury can operate as a “sword” to combat crime by utilizing its investigative authority to seek the truth by witnesses who appear under oath (Kamisar et al. 2012, 791). Unfortunately, a grand jury, particularly if selected in a biased fashion, occasionally lacks independence if the majority agrees automatically with the prosecutor’s recommendations.

At the federal level, the grand jury is utilized almost exclusively, since the Fifth Amendment requires a grand-jury indictment for all felony charges.16 As with any constitutional right, the accused may knowingly and voluntarily waive that right.17 If the suspect waives a grand-jury indictment, the government can file a direct charge, or information. In contrast, at the state level, the grand jury is not a major aspect of the crime-charging process. Only eighteen of the fifty states require prosecution by indictment in felony cases (Kamisar et al. 2012, 794). In other words, the information serves as the primary charging procedure. When the prosecutor utilizes the information, she presents this formal charge to a magistrate or judge for a probable-cause review. Both federal and state governments rely on the same citizens for grand and petit juries. The eligible persons generally are drawn from voter registration and motor vehicle division records.

In the quest for justice, the composition of a grand jury or a petit jury should never be tainted by governmental discrimination. Often, socioeconomic factors contribute to an unrepresentative pool of possible jurors. One solution is to mandate cooperation by businesses to allow their employees the opportunity to be paid their salary while they serve. Obviously, the business owner would want some type of adjustment, such as having the employee work extra hours upon his return to compensate for the lost time. In addition, many governmental units have provided for an increase in jury-service fees.

The Historic Ruling in Hernandez v. Texas

Hernandez v. Texas addresses the Latino’s goal of jury participation and the patient quest for equal treatment as a person. Unquestionably, Hernandez has been significant in the pursuit to correct injustices against Latinos. Regrettably, Hernandez has attracted very little attention in the law books, a fact somewhat consistent with the description in the 1960s of the Mexican American and Latino people as “invisible” (Weber 1973, 1). Concerted action among Latinos is needed to overcome barriers to progress. Inequality will remain until the Latino community takes action by understanding the power of the vote and the fact that respect can and will be gained once this community participates in the large numbers that the population represents. Only then can this so-called “sleeping giant” overcome the stigma of apathy that has characterized the group’s political performance. Single-digit voting percentages have never gained (and never will gain) respect for any identifiable voting group, either before, during, or after an election.

In Hernandez v. Texas the Supreme Court unanimously concluded that the Fourteenth Amendment protects Latinos and other identifiable ethnic groups by prohibiting their intentional exclusion from grand-jury participation.18 The county grand jury in Edna, Texas, indicted Pete Hernandez on a murder charge, and the trial jury subsequently convicted him and assessed a life sentence. Hernandez complained that county officials systematically excluded persons of Mexican descent from service as jury commissioners, grand jurors, and petit jurors even though the county rolls included Latinos fully qualified to serve.19

The Texas attorney general took the position that grand juries that indicted, and trial juries that ultimately convicted Latinos were comprised exclusively of “white” people. Therefore, there could be no violation of the Equal Protection Clause since Latinos were legally white. In other words, there had been no state-imposed systematic exclusion of whites or a protected class known as Latinos. After all, Latinos are white, and the juries that convicted and sentenced Latinos included white and black people. Texas essentially promoted the white-black equal-protection model, arguing that the Fourteenth Amendment applied only to whites (i.e., Anglos and Latinos) and to persons of African descent.

The League of United Latin American Citizens (LULAC) and other civil rights groups promoted the “white” Latino classification. However, Gus Garcia and Carlos Cadena, the primary Hernandez attorneys, asserted that Latinos constituted a people distinct from “other whites.”20 To substantiate claims of group discrimination, they proved that persons of Mexican descent constituted a separate and distinct class in the community. In part, Hernandez’s attorneys demonstrated this status by offering proof of the Anglo community’s attitudes towards Latin Americans (Olivas 2006).

For instance, testimony from responsible officials and citizens established that residents of the community distinguished between “white” and “Mexican” citizens. Persons of Mexican descent participated only slightly in business and community groups. Until shortly before the trial, children of Mexican descent had to attend a segregated school for the first four grades. Additionally, at least one restaurant in town prominently displayed a sign announcing, “No Mexicans Served.” The “smoking gun” in Hernandez’s evidence proved to be a coincidental discovery. The courthouse in Jackson County, Texas, had two men’s toilets, one unmarked and the other marked with two designations, “Colored Men” and “Hombres Aqui” (“Men Here”).21 Upon request, a worker directed one of Hernandez’s attorneys to a restroom reserved for blacks and Latinos (Olivas 2006, 202, 216 n. 42).

The Hernandez parties additionally stipulated or admitted that the county had jury-eligible Latino males who had never served. In addition, over twenty-five years, Jackson County failed to involve any Latino, whether as a commissioner or as a grand or petit juror.22 With this proof, the lawyers relied on the “rule of exclusion” principle, which dictates that proof of substantial underrepresentation among an identifiable group constitutes prima facie proof of their systematic exclusion, and required the state to produce evidence to dispute deliberate bias.23

In Hernandez, the state’s failure to explain the disproportionate numbers prompted Chief Justice Earl Warren to conclude that the over twenty-five-year absence of Latinos among the over 6,000 jurors “bespeaks discrimination.”24 The state’s lawyers argued that Latinos merely sought a guaranteed proportional representation, but Hernandez responded that he only asked not to have his ethnic group systematically excluded.25 No accused, after all, wants to begin the accusatory stage (the grand jury indictment) and/or the trial without even a reasonable chance to have a jury of his peers (an impartial jury) as guaranteed by the Sixth and Fourteenth Amendments.26

Cadena’s written brief attacked the two-class equal protection concept’s limitations. The future constitutional law professor and appellate judge cited two Texas cases that determined equal-protection violations in other than the white-black dichotomy. In Juarez v. State, the Texas Court of Criminal Appeals condemned the systematic exclusion of Roman Catholics from juries.27 Second, Cadena cited his own victory in Clifton v. Puente to establish that Latinos, even if white, were entitled to protection from state judicial enforcement of racially restrictive covenants prohibiting the sale of land to Latinos.28 Additionally, Cadena reminded the Court of its 1886 Yick Wo v. Hopkins decision and its equal-protection application to Chinese residents, a group other than Caucasian or African American.29 Once again, the two-class interpretation by the state of Texas proved to be unsubstantiated and lacking in judicial precedence. In the end, Hernandez’s lawyers established that persons of Mexican descent constituted an identifiable ethnic group that the dominant Anglo population impermissibly treated unequally.

Gus Garcia’s oratory also proved potent in convincing the Court to grant relief. The former debate champion at the University of Texas was a teammate of such prominent political leaders as Texas governors John Connally and Allan Shivers. During the Hernandez arguments, Garcia delivered such an eloquent explanation of the case that Chief Justice Warren extended his time allotment by approximately fifteen minutes, a decision hardly ever seen at the Supreme Court. Fortunately, the PBS documentary entitled A Class Apart preserves the persuasive voice of Gus Garcia (American Experience 2009).

The Hernandez ruling provides Latinos with relief. However, problems arise because the method of selecting Texas grand juries remains in the hands of those individuals who traditionally control power. The Texas Code of Criminal Procedure, similar to those of other states, provides that the district judge shall appoint three to five persons as jury commissioners. Among other qualifications, the commissioners shall “be residents of different portions of the county.”30 In metropolitan counties that have noticeably segregated neighborhoods, this mandatory provision should result in more racially and socioeconomically diverse grand juries. Another provision directs commissioners to select a cross section, “considering the factors of race, sex, and age.”31

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