407 U.S. 493
92 S.Ct. 2163
33 L.Ed.2d 83
Dean Rene PETERS, Petitioner,v.C. P. KIFF, Warden.
No. 71—5078.
Argued Feb. 22, 1972.
Decided June 22, 1972.
 
      Syllabus
 
      Petitioner contends in this habeas corpus proceeding that the
 systematic exclusion of Negroes from the grand jury that indicted
 him and the petit jury that convicted him deprived him of his
 rights to due process and equal protection. The Court of Appeals
 affirmed the District Court's denial of relied on the District
 Court's denial of relief on Negro, suffered no unconstitutional
 discrimination. Held: The judgment is reversed. Pp. 495—507.
 
      5 Cir., 441 F.2d 370, reversed and remanded.
 
      Mr. Justice MARSHALL, joined by Mr. Justice DOUGLAS and Mr.
 Justice STEWART, concluded that:
 
      1. Petitioner, under the circumstances of this case, has not
 abandoned his challenge to the petit jury by failing to include it
 in the list of questions presented by the writ of certiorari. Pp.
 495—496.
 
      2. A State cannot, consistent with due process, subject a
 defendant to indictment by a grand jury or trial by a petit jury
 that has been selected in an arbitrary and discriminatory manner
 contrary to federal constitutional and statutory requirements, and
 regardless of any showing of actual bias, petitioner had standing
 to attack the systematic exclusion of Negroes from grand jury and
 petit jury service. Pp. 496—505.
 
      Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr.
 Justice POWELL, would implement the longstanding and strong policy
 of 18 U.S.C. § 243 against excluding qualified jurors on account
 of race by permitting petitioner to challenge his conviction on
 the ground that Negroes were arbitrarily excluded from the grand
 jury that indicted him. Hill v. Texas, 316 U.S. 400, 62 S.Ct.
 1159, 86 L.Ed. 1559. P. 507.

1
Page 494
 
      Edward T. M. Garland, Atlanta, Ga., for petitioner.
 
      Dorothy T. Beasley, Atlanta, Ga., for respondent.
 
 djQ  Mr. Justice MARSHALL announced the judgment of the Court and
 an opinion in which Mr. Justice DOUGLAS and Mr. Justice STEWART
 join.
 
      Petitioner alleges that Negroes were systematically excluded
 from the grand jury that indicted him and the petit jury that
 convicted him of burglary in the Superior Court of Muscogee
 County, Georgia. In consequence he contends that his conviction is
 invalid under the Due Process and Equal Protection Clauses of the
 Fourteenth Amendment. Because he is not himself a Negro, the
 respondent contends that he has not suffered any unconstitutional
 discrimination, and that his conviction must stand. On that
 ground, the Court of Appeals affirmed the denial of his petition
 for federal habeas corpus. 441 F.2d 370 (CA5 1971).1 We granted
 certiorari. 404 U.S. 964, 92 S.Ct. 341, 30 L.Ed.2d 284 (1971). We
 reverse.


2
Page 495
 
                               I
 
      At the outset, we reject the contention that the only issue
 before this Court is petitioner's challenge to the composition of
 the grand jury that indicted him. The respondent argues that the
 challenge to the petit jury is not before us, because it fails to
 appear in the list of questions presented by the petition for
 certiorari. We do not regard that omission as controlling,
 however, in light of the fact that the two claims have been
 treated together at every stage of the proceedings below, they are
 treated together in the body of the petition for certiorari, and
 they are treated together in the brief filed by petitioner on the
 merits in this Court. Petitioner cannot fairly be said to have
 abandoned his challenge to the petit jury, and the State has had
 ample opportunity to 
 
      Moreover, in this case the principles governing the two
 claims are identical. First, it appears that the same selection
 process was used for both the grand jury andrespond to that
 challenge, having done so at length below.2


3
Page 496
 
 the petit jury.3 Consequently, the question whether jurors were in
 fact excluded on the basis of race will be answered the same way
 for both tribunals. Second, both the grand jury and the petit jury
 in this case must be measured solely by the general Fourteenth
 Amendment guarantees of due process and equal protection, and not
 by the specific constitutional provisions for the grand jury and
 the petit jury. For the Fifth Amendment right to a grand jury does
 not apply in a state prosecution. Hurtado v. California, 110 U.S.
 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884). And the Sixth
 Amendment right to a petit jury, made applicable to the States
 through the Due Process Clause of the Fourteenth 391 U.S. 145,
 194, 88 S.Ct. 1444, 20 391 U.S. 145, 194, 88 S.Ct. 1444, 20
 L.Ed.2d 491, 522 (1968), does not apply to state trials that took
 place before the decision in Duncan, as petitioner's trial did. De
 Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
 (1968). Accordingly, we turn now to the commands of equal
 protection and of due process.
 
                              II
 
      This Court has never before considered a white defendant's
 challenge to the exclusion of Negroes from jury service.4 The
 essence of petitioner's claim is this:


4
Page 497
 
 that the tribunals that indicted and convicted him were
 constituted in a manner that is prohibited by the Constitution and
 by statute; that the impact of that error on any individual trial
 is unascertainable; and that consequently any indictment or
 conviction returned by such tribunals must be set aside.5
 
      There can be no doubt that, if petitioner's allegations are
 true, both tribunals involved in this case were illegally
 constituted. He alleges that Negroes were systematically excluded
 from both the grand jury and the petit jury. This Court has
 repeatedly held that the Constitution prohibits such selection
 practices, with respect to the grand jury,6 the petit jury,7 or
 both.8 Moreover, Con-


5
Page 498
 
 gress has made it a crime for a public official to exclude anyone
 from a grand or petit jury on the basis of race, 18 U.S.C. § 243,
 and this Court upheld the statute, approving the congressional
 determination that such exclusion would violate the express
 prohibitions of the Equal Protection Clause. Ex parte Virginia,
 100 U.S. 339, 25 L.Ed. 676 (1880). The crime, and the
 unconstitutional state action, occur whether the defendant is
 white or Negro, whether he is acquitted or convicted. In short,
 when a grand or petit jury has been selected on an impermissible
 basis, the existence of a constitutional violation does not depend
 on the circumstances of the person making the claim.
 
      It is a separate question, however, whether petitioner is
 entitled to the relief he seeks on the basis of that
 constitutional violation. Respondent argues that even if the grand
 and petit juries were unconstitutionally selected, petitioner is
 not entitled to relief on that account because he has not shown
 how he was harmed by the error. It is argued that a Negro
 defendant's right to challenge the exclusion of Negroes from jury
 service rests on a presumption that a jury so constituted will be
 prejudiced against him; that no such presumption is available to a
 white defendant; and consequently that a white defendant must
 introduce affirmative evidence of actual harm in order to
 establish a basis for relief.
 
      That argument takes too narrow a view of the kinds of harm
 that flow from discrimination in jury selection. The exclusion of
 Negroes from jury service, like the arbitrary exclusion of any
 other well-defined class of citizens, offends a number of related
 constitutional values.
 
      In Strauder v. West Virginia, 100 U.S. 303, 308—309 (1880),
 this Court considered the question from the point


6
Page 499
 
 of view of the Negro defendant's right of equal protection of the
 laws. Strauder was part of a landmark trilogy of cases, in which
 this Court first dealt with the problem of racial discrimination
 in jury selection. In Strauder itself, a Negro defendant sought to
 remove his criminal trial to the federal courts, pursuant to
 statute, on the ground that Negroes were excluded by law from the
 grand and petit juries in the state courts; the Court upheld his
 claim. In Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), a
 Negro defendant sought removal on the ground that there were in
 fact no Negroes in the venire from which his jury was drawn; the
 Court held that, without more, his claim did not come within the
 precise terms of the removal statute. Finally, in Ex parte
 Virginia, 100 U.S. 339 (1880), a state judge challenged the
 statute under which he was convicted for the federal crime of
 excluding Negroes from state grand and petit juries; the Court
 upheld the statute as a valid means of enforcing the Equal
 Protection Clause. Because each of these three cases was amenable
 to decision on the narrow basis of an analysis of the Negro
 defendant's right to equal protection, the Court brought all three
 under that single analytical umbrella.
 
      But even in 1880 the Court recognized that other
 constitutional values were implicated. In Strauder, the Court
 observed that the exclusion of Negroes from jury service injures
 not only defendants, but also other members of the excluded class:
 it denies the class of potential jurors the 'privilege of
 participating equally . . . in the administration of justice,' 100
 U.S., at 308, and it stigmatizes the whole class, even those who
 do not wish to participate, by declaring them unfit for jury
 service and thereby putting 'a brand upon them, affixed by law, an
 assertion of their inferiority.' Ibid. It is now clear that
 injunctive relief is available to vindicate these interests of the
 excluded jurors and the stigmatized class.


7
Page 500
 
 Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct.
 518, 24 L.Ed.2d 549 (1970); Turner v. Fouche, 396 U.S. 346, 90
 S.Ct. 532, 24 L.Ed.2d 567 (1970); White v. Crook, 251 F.Supp. 401
 (DCMD Ala.1966).
 
      Moreover, the Court has also recognized that the exclusion of
 a discernible class from jury service injures not only those
 defendants who belong to the excluded class, but other defendants
 as well, in that it destroys the possibility that the jury will
 reflect a representative cross section of the community. In
 Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446
 (1970), we sought to delineate some of the essential features of
 the jury that is guaranteed, in certain circumstances, by the
 Sixth Amendment. We concluded that it comprehends, inter alia, 'a
 fair possibility for obtaining a representative cross-section of
 the community.' 399 U.S., at 100, 90 S.Ct., at 1906.9 Thus if the
 Sixth Amendment were applicable here, and petitioner were
 challenging a post-Duncan petit jury, he would clearly have
 standing to challenge the systematic exclusion of any identifiable
 group from jury service.10


8
Page 501
 
      The precise question in this case, then, is whether a State
 may subject a defendant to indictment and trial by grand and petit
 juries that are plainly illegal in their composition, and leave
 the defendant without recourse on the ground that he had in any
 event no right to a grand or petit jury at all. We conclude, for
 reasons that follow, that to do so denies the defendant due
 process of law.
 
                              III
 
      'A fair trial in a fair tribunal is a basic requirement of
 due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
 625, 99 L.Ed. 942 (1955). The due process right to a competent and
 impartial tribunal is quite separate from the right to any
 particular form of proceeding. Due process requires a competent
 and impartial tribunal in administrative hearings, Goldberg v.
 Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287
 (1970), and in trials to a judge, Tumey v. Ohio, 273 U.S. 510, 47
 S.Ct. 437, 71 L.Ed. 749 (1927). Similarly, if a State chooses,
 quite apart from constitutional compulsion, to use a grand or
 petit jury, due process imposes limitations on the composition of
 that jury.
 
      Long before this Court held that the Constitution imposes the
 requirement of jury trial on the States, it was well established
 that the Due Process Clause protects a defendant from jurors who
 are actually incapable of rendering an impartial verdict, based on
 the evidence and the law. Thus a defendant cannot, consistent with
 due process, be subjected to trial by an insane juror, Jordan v.
 Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038
 (1912), by jurors who are intimidated by the threat of mob
 violence, Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed.
 543 (1923), or by jurors who


9
Page 502
 
 have formed a fixed opinion about the case from newspaper
 publicity, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
 751 (1961).
 
      Moreover, even if there is no showing of actual bias in the
 tribunal, this Court has held that due process is denied by
 circumstances that create the likelihood or the appearance of
 bias. This rule, too, was well established long before the right
 to jury trial was made applicable in state trials, and does not
 depend on it. Thus it has been invoked in trials to a judge, e.g.,
 Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); In
 re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955);
 Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d
 532 (1971); and in pre-Duncan state jury trials, e.g., Turner v.
 Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965);
 Estes v. Texas, 381 U.S. 532, 550, 85 S.Ct. 1628, 1636, 14 L.Ed.2d
 543 (1965). In Tumey v. Ohio, supra, this Court held that a judge
 could not, consistent with due process, try a case when he had a
 financial stake in the outcome, notwithstanding the possibility
 that he might resist the temptation to be influenced by that
 interest. And in Turner v. Louisiana, supra, the Court held that a
 jury could not, consistent with due process, try a case after it
 had been placed in the protective custody of the principal
 prosecution witnesses, notwithstanding the possibility that the
 jurors might not be influenced by the association. As this Court
 said in In re Murchison, supra, '(f)airness of course requires an
 absence of actual bias in the trial of cases. But our system of
 law has always endeavored to prevent even the probability of
 unfairness.' 349 U.S., at 136, 75 S.Ct. at 625.
 
      These principles compel the conclusion that a State cannot,
 consistent with due process, subject a defendant to indictment or
 trial by a jury that has been selected in an arbitrary and
 discriminatory manner, in violation of the Constitution and laws
 of the United States. Illegal and unconstitutional jury selection
 procedures cast doubt on the integrity of the whole judicial
 process.


10
Page 503
 
 They create the appearance of bias in the decision of individual
 cases, and they increase the risk of actual bias as well.
 
      If it were possible to say with confidence that the risk of
 bias resulting from the arbitrary action involved here is confined
 to cases involving Negro defendants,11 then perhaps the right to
 challenge the tribunal on that ground could be similarly confined.
 The case of the white defendant might then be thought to present a
 species of harmless error.
 
      But the exclusion from jury service of a substantial and
 identifiable class of citizens has a potential impact that is too
 subtle and too pervasive to admit of confinement to particular
 issues or particular cases. First, if we assume that the exclusion
 of Negroes affects the fairness of the jury only with respect to
 issues presenting a clear opportunity for the operation of race
 prejudice, that assumption does not provide a workable guide for
 decision in particular cases. For the opportunity to appeal to
 race prejudice is latent in a vast range of issues, cutting across
 the entire fabric of our society.
 
      Moreover, we are unwilling to make the assumption that the
 exclusion of Negroes has relevance only for issues involving race.
 When any large and identifiable segment of the community is
 excluded from jury service, the effect is to remove from the jury
 room qualities of human nature and varieties of human experience,
 the range of which is unknown and perhaps unknowable. It is not
 necessary to assume that the excluded group will consistently vote
 as a class in order to conclude, as we do, that its exclusion
 deprives the jury of a


11
Page 504
 
 perspective on human events that may have unsuspected importance
 in any case that may be presented.12
 
 
      It is in the nature of the practices here challenged that
 proof of actual harm, or lack of harm, is virtually impossible to
 adduce. For there is no way to determine what jury would have been
 selected under a constitutionally valid selection system, or how
 that jury would have decided the case. Consequently, it is
 necessary to decide on principle which side shall suffer the
 consequences of unavoidable uncertainty. See Speiser v. Randall,
 357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341—1342, 2 L.Ed.2d 1460
 (1958); In re Winship, 397 U.S. 358, 370—373, 90 S.Ct. 1068, 1075
 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In light of
 the great potential for harm latent in an unconstitutional
 jury-selection system,13 and the strong interest of the criminal
 defendant in avoiding that harm, any doubt should be resolved in
 favor of giving the opportunity for challenging the jury to too
 many defendants, rather than giving it to too few.
 
      Accordingly, we hold that, whatever his race, a criminal
 defendant has standing to challenge the system used to select his
 grand or petit jury, on the ground that it arbitrarily excludes
 from service the members of any race, and thereby denies him due
 process of law. This certainly is true in this case, where the
 claim is that Negroes were systematically excluded from jury
 service.


12
Page 505
 
 For Congress has made such exclusion a crime. 18 U.S.C. § 243.
 
                              IV
 
      Having resolved the question of standing, we turn briefly to
 the further disposition of this case. There is, of course, no
 question here of justifying the system under attack. For whatever
 may be the law with regard to other exclusions from jury service,
 it is clear beyond all doubt that the exclusion of Negroes cannot
 pass constitutional muster. Accordingly, if petitioner's
 allegations are correct, and Negroes were systematically excluded
 from his grand and petit juries, then he was indicted and
 convicted by tribunals that fail to satisfy the elementary
 requirements of due process, and neither the indictment nor the
 conviction can stand. Since he was precluded from proving the
 facts alleged in support of his claim, the judgment must be
 reversed and the case remanded for further proceedings consistent
 with this opinion.
 
      Reversed and remanded.
 
 djQ  Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr.
 Justice POWELL join, concurring in the judgment.
 
      Since March 1, 1875, the criminal laws of the United States
 have contained a proscription to the following effect:
 
      'No citizen possessing all other qualifications which are or
      may be prescribed by law shall be disqualified for service as
      grand or petit juror in any court of the United States, or of
      any State on account of race, color, or previous condition of
      servitude . . .'
 
      By this unambiguous provision, now contained in 18 U.S.C. §
 243, Congress put cases involving exclusions


13
Page 506
 
 from jury service on grounds of race in a class by themselves.
 'For us the majestic generalities of the Fourteenth Amendment are
 thus reduced to a concrete statutory command when cases involve
 race or color which is wanting in every other case of alleged
 discrimination.' Fay v. New York, 332 U.S. 261, 282—283, 67 S.Ct.
 1613, 1624, 91 L.Ed. 2043 (1947).
 
      The consequence is that where jury commissioners disqualify
 citizens on the grounds of race, they fail 'to perform their
 constitutional duty—recognized by § 4 of the Civil Rights Act of
 March 1, 1875 . . . and fully established since the decision in
 1881 of Neal v. Delaware . . . not to pursue a course of conduct
 in the administration of their office which would operate to
 discriminate in the selection of jurors on racial grounds.' Hill
 v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559
 (1942). Thus, 'no State is at liberty to impose upon one charged
 with crime a discrimination in its trial procedure which the
 Constitution, and an Act of Congress passed pursuant to the
 Constitution, alike forbid. . . . (I)t 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.' Id., at 406, 62 S.Ct. at
 1162.
 
      It is true that the defendant in Hill was a Negro and
 petitioner here is a white man. It is also true that there is no
 case in this Court setting aside a conviction for arbitrary
 exclusions of a class of citizens from jury service where the
 defendant was not a member of the excluded class. I also recognize
 that, as in this case, the courts of appeals, reflecting the
 generally accepted constitutional view, have rejected claims such
 as petitioner presents here. For me, however, the rationale and
 operative language of Hill v. Texas suggest a broader


14
Page 507
 
 sweep; and I would implement the strong statutory policy of § 243,
 which reflects the central concern of the Fourteenth Amendment
 with racial discrimination, by permitting petitioner to challenge
 his conviction on the grounds that Negroes were arbitrarily
 excluded from the grand jury that indicted him. This is the better
 view, and it is time that we now recognized it in this case and as
 the standard governing criminal proceedings instituted hereafter.
 Hence, I join the judgment of the Court.
 
 djQ  Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and
 Mr. Justice REHNQUIST join, dissenting.
 
      There is no longer any question, of course, that persons may
 not be excluded from juries on account of race. Such exclusions
 are plainly unlawful and deserving of condemnation. That, however,
 is not the issue before us. The real issue is whether such
 illegality necessarily voids a criminal conviction, absent any
 demonstration of prejudice, or basis for presuming prejudice, to
 the accused.
 
      Petitioner was indicted for the offense of burglary on June
 6, 1966, and thereafter convicted. The conviction was reversed on
 direct appeal, and the case was remanded for a new trial.
 Petitioner was retried on December 8, 1966, was found guilty, and
 was sentenced to 10 years' imprisonment. Petitioner is not a Negro
 and the record in no way suggests that race was relevant in the
 proceedings against him. At trial, petitioner made no challenge to
 the method of selection of the grand and petit juries, and he made
 no challenge to the array of the petit jury. In his appeal to the
 Court of Appeals of Georgia, petitioner still made no claim
 addressed to the method of selection of the grand and petit
 juries. His conviction was affirmed.


15
Page 508
 
      Seven months after his trial, petitioner filed a writ of
 habeas corpus in the United States District Court, asserting for
 the first time that Negroes were systematically excluded from the
 grand and petit juries. If petitioner's allegations are true, then
 the officials responsible for the jury selection acted in
 violation of the Constitution, denying potential Negro jurors the
 equal opportunity to participate in the administration of justice.
 Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880).
 Moreover, if petitioner's allegations are true, the responsible
 officials are subject to criminal penalties. 18 U.S.C. § 243.
 However, in order for petitioner's conviction to be set aside, it
 is not enough to show merely that there has been some
 unconstitutional or unlawful action at the trial level. It must be
 established that petitioner's conviction has resulted from the
 denial of federally secured rights properly asserted by him. See
 Alderman v. United States, 394 U.S. 165, 171—174, 89 S.Ct. 961,
 965—967, 22 L.Ed.2d 176 (1969); cf. Jones v. United States, 362
 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).
 
      The opinions in support of the majority position do not hold
 that if petitioner's allegations are true, he has been denied the
 equal protection of the laws. The Court has held in a long line of
 cases that a Negro defendant is denied equal protection by the
 systematic exclusion of Negroes from jury service. See, e.g.,
 Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599
 (1967); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
 1244 (1953); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79
 L.Ed. 1074 (1935); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44
 L.Ed. 839 (1900); Strauder v. West Virginia, 100 U.S. 303, 25
 L.Ed. 664 (1880). These decisions have been predicated from the
 beginning on the judicially noticeable fact 'that prejudices often
 exist against particular classes in the community, which sway the
 judgment of jurors, and which, therefore, operate in some cases to
 deny to persons of those classes the full enjoyment of that
 protection which others enjoy.'


16
Page 509
 
 Strauder v. West Virginia, supra, at 309. See also Gibson v.
 Mississippi, 162 U.S. 565, 581, 16 S.Ct. 904, 906, 40 L.Ed. 1075
 (1896); Bush v. Kentucky, 107 U.S. 110, 117, 1 S.Ct. 625, 631, 27
 L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed.
 567 (1881); Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676
 (1880). This presumption of prejudice derives from the fact that
 the defendant is a member of the excluded class, but the Court has
 never intimated that a defendant is the victim of unconstitutional
 discrimination if he does not claim that members of his own race
 have been excluded. See Alexander v. Louisiana, 405 U.S. 625, 633,
 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972).
 
      While the opinion of Mr. Justice MARSHALL refrains from
 relying on the Equal Protection clause, it concludes that if
 petitioner's allegations are true, he has been denied due process
 of law. The opinion seeks to equate petitioner's position with
 that of a defendant who has been tried before a biased tribunal or
 one lacking the indicia of impartiality. It has been held that an
 accused is denied due process if the trier of fact is mentally
 incompetent, Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651,
 56 L.Ed. 1038 (1912), has a personal interest in the outcome of
 the proceedings, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71
 L.Ed. 749 (1927), has been subjected to pressures making a
 dispassionate decision unlikely, Irvin v. Dowd, 366 U.S. 717, 81
 S.Ct. 1639, 6 L.Ed.2d 751 (1961), Moore v. Dempsey, 261 U.S. 86,
 43 S.Ct. 265, 67 L.Ed. 543 (1923), cf. Turner v. Louisiana, 379
 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), or has had direct
 personal involvement with the events underlying a criminal
 contempt charge. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct.
 499, 27 L.Ed.2d 532 (1971); In re Murchison, 349 U.S. 133, 75
 S.Ct. 623, 99 L.Ed. 942 (1955). This case plainly falls in none of
 those categories.
 
      Although the prior cases have not required a showing that the
 trier of fact was actually affected by prejudice in its
 deliberations, in every case the circumstances were such as to
 create a serious 'probability of unfairness.' In re Murchison, 349
 U.S., at 136, 75 S.Ct. at 625. Recognizing this limitation, the
 Court in Witherspoon v. Illinois, 391


17
Page 510
 
 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), found no denial of
 due process where the determination of guilt had been entrusted to
 a jury from which persons opposed to the death penalty had been
 excluded. The Court rejected as 'tentative and fragmentary'
 scientific evidence tending to show 'that jurors not opposed to
 the death penalty tend to favor the prosecution in the
 determination of guilt.' 391 U.S., at 517, 88 S.Ct. at 1774, 20
 L.Ed.2d 776. The Court went on to state,
 
      'We simply cannot conclude, either on the basis of the record
      now before us or as a matter of judicial notice, that the
      exclusion jurors opposed to capital punishment results in an
      unrepresentative jury on the issue of guilt or substantially
      increases the risk of conviction. In light of the presently
      available information, we are not prepared to announce a per
      se constitutional rule requiring the reversal of every
      conviction returned by a jury selected as this one was.' 391
      U.S., at 517—518, 88 S.Ct. at 1774, 20 L.Ed.2d 776.
 
      See also Fay v. New York, 332 U.S. 261, 280—281, 67 S.Ct.
 1613, 1623—1624, 91 L.Ed. 2043 (1947). Here three members of the
 Court would establish such a per se rule without the benefit of
 tentative, fragmentary, of any other kind of empirical data
 indicating that all-white juries tend to be prejudiced against
 white defendants in nonracial criminal poceedings.
 
      The opinion of Mr. Justice MARSHALL seeks to magnify this
 wholly speculative likelihood of prejudice by noting that the
 effect of excluding 'any large and identifiable segment of the
 community . . . is to remove from the jury room qualities of human
 nature and varieties of human experience, the range of which is
 unknown and perhaps unknowable,' and 'that its exclusion deprives
 the jury of a perspective on human events that may have
 unsuspected importance in any case that may be presented.' Ante,
 at 503—504. I completely agree that juries should not be deprived
 of the insights of the various


18
Page 511
 
 segments of the community, for the 'common-sense judgment of a
 jury,' referred to in Duncan v. Louisiana, 391 U.S. 145, 156, 88
 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968), is surely enriched when
 all voices can be heard. But we are not here concerned with the
 essential attributes of trial by jury. In fact, since petitioner
 was tried two years before this Court's decision in Duncan, there
 was no constitutional requirement that he be tried before a jury
 at all. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20
 L.Ed.2d 1308 (1968). Had the State of Georgia proceeded to try
 petitioner before a judge, I assume the Court would not find it a
 denial ofdue process if the judge were not the embodiment of all
 the 'qualities of human nature and varieties of human experience.'
 I do not mean to minimize the importance of these values, but they
 really have very little to do with the narrow question whether
 petitioner was convicted by a prejudiced tribunal.
 
      Nor do I believe that the illegality of the alleged exclusion
 can be viewed as tipping the scales toward finding a denial of due
 process. The question of a jury's bias or prejudice is totally
 factual in nature. If the possibility of prejudice is too remote
 or speculative to support a finding of unconstitutionality, a
 different result cannot be justified by relying on the element of
 illegality. The constitutional and statutory prohibition against
 such conduct is extraneous to the due process question, for it in
 no way renders the possibility of prejudice less remote or less
 speculative. If this were a borderline case on the facts, it might
 conceivably be appropriate to resolve the doubt against the State
 due to its complicity in the alleged unlawful discrimination. But,
 judging from all existing authority, this is not a close case at
 all.
 
      The opinion of Mr. Justice WHITE, concurring in the judgment,
 as I read it, rests on the statutory prohibition against racially
 exclusive juries found in 18 U.S.C. § 243. The opinion draws on
 dictum in Hill v. Texas, 316 U.S.


19
Page 512
 
 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942), a case
 involving a Negro defendant, as expressing the 'better view' that
 § 243 invalidates the conviction of any man tried before a jury
 from which persons have been excluded on account of race.*
 
      A closer look at the statute is warranted. From all
 indications, § 243 was intended to serve two purposes: first, to
 make explicit what was implicit in the Fourteenth Amendment, that
 persons cannot be denied the right to serve on juries because of
 their race; and second, to prevent racial exclusions from juries
 by providing criminal penalties for persons violating the
 statutory command. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed.
 676 (1880); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567
 (1881). Insofar as the statute is declarative of rights secured by
 the Equal Protection Clause, it provides no authority for reaching
 a result that the Constitution itself does not require. No case
 has ever held that § 243 confers extraconstitutional rights on
 criminal defendants, and there is no support for the view that
 Congress intended to confer such rights when it eancted this
 legislation in 1875.
 
      The opinion concurring in the judgment suggests that an
 expansive reading of § 243 is appropriate to 'implement the strong
 statutory policy' against the exclusion


20
Page 513
 
 of persons from jury service on the basis of race. Under this
 interpretation, the statute is viewed not so much as safeguarding
 the rights of the white defendant, but as providing a prophylaxis
 against discriminatory action in all cases, regardless of any harm
 that might befall the accused. While Congress surely had the power
 to implement the policies of the Fourteenth Amendment in this
 manner, it chose instead to deter such violations of the
 Fourteenth Amendment by imposing criminal sanctions. It has been
 apparent, at least until recently, that such sanctions have not
 satisfactorily served to deter. But it is not for this Court to
 correct the inadequacies of a statutory enactment. Moreover, it
 does nothing to promote adherence to the policies of the
 Fourteenth Amendment to allow a criminal defendant who has made no
 objection at trial and who has no credible claim of personal
 prejudice to mount a post-conviction attack alleging that
 discriminatory jury selection has taken place in the past.



1
 The history of this litigation is long and complicated.
 Petitioner was indicted on June 6, 1966. His first trial resulted
 in a conviction that was reversed on Fourth Amendment grounds, 114
 Ga.App. 595, 152 S.E.2d 647 (1966). A second trial, held on
 December 8, 1966, resulted in the conviction challenged here,
 which was affirmed, Peters v. State, 115 Ga.App. 743, 156 S.E.2d
 195 (1967). Petitioner for the first time raised the claim of
 discriminatory jury selection in a petition for federal habeas
 corpus, which was summarily denied on July 5, 1967. The Court of
 Appeals affirmed on the ground that petitioner had failed to
 exhaust then-available state remedies with respect to his
 otherwise highly colorable claim, Peters v. Rutledge, 397 F.2d
 731, 735—741 (CA5 1968). Petitioner then filed a second petition
 for federal habeas corpus on the same ground, alleging that
 intervening state court decisions clearly foreclosed his claim in
 the state courts. That petition was denied on the grounds (1) that
 it was repetitious, (2) that petitioner had failed to exhaust, and
 (3) that his claims were lacking in merit. App. 15. The Court of
 Appeals again affirmed, rejecting the first two grounds and
 resting entirely on the third, i.e., rejecting petitioner's
 substantive claims. 441 F.2d 370 (1971). The exhaustion point thus
 having been resolved in petitioner's favor below, the State quite
 properly does not press it here.


2
 See Brief for Appellee in Court of Appeals 28—43.


3
 The jury lists were made up from the tax digests, which
 were by law segregated according to race; moreover, the jury lists
 contained a proportion of Negroes much smaller than the proportion
 in the population or in the tax digests. The jury-selection system
 of Muscogee County, Georgia, was explored in detail and struck
 down as unconstitutional in Vanleeward v. Rutledge, 369 F.2d 584
 (CA5 1966), contemporaneously with petitioner's trial. On
 petitioner's first federal appeal, the Court of Appeals suggested,
 though it did not hold, that the Vanleeward findings and
 conclusions on this point should be regarded as conclusive with
 respect to Peters, and thereby the expense and delay of a full
 evidentiary hearing might be avoided, 397 F.2d, at 740.4 A number of state courts and lower federal courts have
 imposed a 'same class' rule on challenges to discriminatory jury
 selection, holding that the exclusion of a class from jury service
 is subject to challenge only by a member of the excluded class.
 Only a few courts have rejected the rule; e.g., Allen v. State,
 110 Ga.App. 56, 137 S.E.2d 711 (1964) (not followed by other
 panels of same court); State v. Madison 240 Md. 265, 213 A.2d 880
 (1965). The cases are collected, and criticized, in Note, The
 Defendant's Challenge to a Racial Criterion in Jury Selection, 74
 Yale L.J. 919 (1965). See also Note, The Congress, The Court and
 Jury Selection, 52 Va.L.Rev. 1069 (1966). This Court avoided
 passing on the 'same-class' rule in Fay v. New York, 332 U.S. 261,
 289—290, 67 S.Ct. 1613, 1628—1629, 91 L.Ed. 2043 (1947), and has
 never since then approved or rejected it.


5
 He also claims his own rights under the Equal Protection
 Clause have been violated, a claim we need not consider in light
 of our disposition.6 Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31
 L.Ed.2d 536 (1972); Arnold v. North Carolina, 376 U.S. 773, 84
 S.Ct. 153, 11 L.Ed.2d 110 (1964); Eubanks v. Louisiana, 356 U.S.
 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350
 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Cassell v. Texas, 339
 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316
 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311
 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana,
 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Rogers v.
 Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter
 v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Bush v.
 Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).7 Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
 1244 (1953); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79
 L.Ed. 1500 (1935).8 Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d
 634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d
 25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17
 L.Ed.2d 599 (1967); Coleman v. Alabama, 377 U.S. 129, 84 S.Ct.
 1152, 12 L.Ed.2d 190 (1964); Patton v. Mississippi, 332 U.S. 463,
 68 S.Ct. 184, 92 L.Ed. 76 (1947); Hale v. Kentucky, 303 U.S. 613,
 58 S.Ct. 753, 82 L.Ed. 1050 (1938); Norris v. Alabama, 294 U.S.
 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Martin v. Texas, 200 U.S.
 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Neal v. Delaware, 103 U.S.
 370, 26 L.Ed. 567 (1881); Strauder v. West Virginia, 100 U.S. 303,
 25 L.Ed. 664 (1880).


9
 The principle of the representative jury was first
 articulated by this Court as a requirement of equal protection, in
 cases vindicating the right of a Negro defendant to challenge the
 systematic exclusion of Negroes from his grand and petit juries.
 E.g., Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85
 L.Ed. 84 (1940). Subsequently, in the exercise of its supervisory
 power over federal courts, this Court extended the principle, to
 permit any defendant to challenge the arbitrary exclusion from
 jury service of his own or any other class. E.g., Glasser v.
 United States, 315 U.S. 60, 83—87, 62 S.Ct. 457, 470—473, 86 L.Ed.
 680 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66
 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Ballard v. United States,
 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Finally it
 emerged as an aspect of the constitutional right to jury trial in
 Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26
 L.Ed.2d 446 (1970).10 It is of course a separate question whether his challenge
 would prevail, i.e., whether the exclusion might be found to have
 sufficient justification. See Rawlins v. Georgia, 201 U.S. 638,
 640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906), holding that a State
 may exclude certain occupational categories from jury service 'on
 the bona fide ground that it (is) for the good of the community
 that their regular work should not be interrupted.' We have no
 occasion here to consider what interests might justify an
 exclusion, or what standard should be applied, since the only
 question in this case is not the validity of an exclusion but
 simply standing to challenge it.


11
 Or the class may be expanded slightly to include white
 civil rights workers, see Allen v. State, 110 Ga.App. 56, 62, 137
 S.E.2d 711, 715 (1964) (alternative holding).


12
 In rejecting, for the federal courts, the exclusion of
 women from jury service this Court made the following
 observations, which are equally relevant to the exclusion of other
 discernible groups: 'The truth is that the two sexes are not
 fungible; a community made up exclusively of one is different from
 a community composed of both; the subtle interplay of influence
 one on the other is among the imponderables. To insulate the
 courtroom from either may not in a given case make an iota of
 difference. Yet a flavor, a distinct quality is lost if either sex
 is excluded.' Ballard v. United States, 329 U.S. 187, 193—194, 67
 S.Ct. 261, 264, 91 L.Ed. 181 (1946) (footnote omitted).13 Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86
 L.Ed. 1559 (1942).


*
 The passage quoted from Hill v. Texas, supra, even if taken
 at face value, does not mandate reversal in this case. It is
 expressly limited to the case where 'timely objection has laid
 bare a discrimination in the selection of grand jurors . . ..' 316
 U.S., at 406, 62 S.Ct. at 1162. As indicated earlier, petitioner
 first made his allegations seven months after his trial. Moreover,
 assuming, arguendo, that there is a statutory right not to be
 tried before a racially exclusive jury, it is not clear to me why
 petitioner's failure to raise the matter in the state courts
 should not preclude him from raising it on a federal habeas
 attack. The Court has spoken of a presumption against the waiver
 of fundamental, constitutional rights, see, e.g., Johnson v.
 Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
 (1938), but has never intimated that a similar presumption should
 apply with respect to statutory rights.


