Sup. Jud. Ct. Reported below: [*] Mass. [*] , 296 N.E. 2d 810.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
Petitioner was convicted in state court of armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. Petitioner and his co-defendants are young Negroes. Their victim was a white, uniformed security guard employed by Boston University. Petitioner requested the trial judge to direct a specific question concerning racial prejudice to the prospective jurors on voir dire.*fn1 The trial judge refused; instead, he made only the general inquiry mandated by Massachusetts law, whether members of the array had "expressed or formed an opinion, or [were] sensible of any bias or prejudice." The Supreme Judicial Court of Massachusetts affirmed the conviction. [*] Mass. [*] , 282 N.E. 2d 70 (1972).
Petitioner sought certiorari on the ground that he had been denied the opportunity to have the jurors examined as to racial bias, a right this Court guaranteed in Aldridge v. United States, 283 U.S. 308 (1931). We granted certiorari and remanded for reconsideration in light of Ham v. South Carolina, 409 U.S. 524 (1973). On remand, the Supreme Judicial Court of Massachusetts again upheld the conviction. [*] Mass. [*] , 296 N.E. 2d 810 (1973)
The importance of the right at issue here - the opportunity to ascertain the racial bias of the veniremen - can hardly be gainsaid. The right to trial by an "impartial jury" is a cornerstone of our system of justice.*fn2
"[The] right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.... In the language of Lord Coke, a juror must be as "indifferent as he stands unsworn." Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial of. Thompson v. City of Louisville, 362 U.S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416 (1807). "The theory of the law is that a juror who has formed an opinion cannot be impartial." Reynolds v. United States, 98 U.S. 145, 155." Irvin v. Dowd, 366 U.S. 717, 722 (1961) (FOOTNOTE OMITTED).
Accordingly, in Ham v. South Carolina, supra, MR. JUSTICE REHNQUIST, writing for a unanimous Court,*fn3 found constitutional error in a state court trial judge's refusal to propound a specific question on racial prejudice to the veniremen in the trial of a Negro for possession of marihuana.*fn4
"The State having created [the] statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias." 409 U.S., at 527.
Nonetheless, on remand, the Massachusetts court read our decision in Ham as limited by the particular circumstances of that case - the trial of a civil rights worker in the South. The State court found that petitioner, unlike Ham, was not likely to be a "special target for racial prejudice" and, therefore, that the trial judge did not err in refusing to make the requested inquiry.
This distinction is supported by neither logic nor precedent. MR. JUSTICE REHNQUIST explained the based for the Court's decision in Ham as follows:
"The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of ...