WHITUS V. GEORGIA, 385 U. S. 545 (1967)

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U.S. Supreme Court

Whitus v. Georgia, 385 U.S. 545 (1967)

Whitus v. Georgia

No. 650

Argued December 7, 1966

Decided January 23, 1967*

385 U.S. 545


After petitioners, who are Negroes, were convicted of murder in the Georgia courts, they filed a writ of habeas corpus in the federal courts, attacking the composition of the grand and petit juries which indicted and convicted them. The District Court dismissed the writ, and the Court of Appeals affirmed. This Court vacated that judgment and remanded to the District Court for a hearing on the claim of discrimination (370 U.S. 728). On remand, the District Court dismissed the petition on the ground that the claim had been waived, but the Court of Appeals reversed, holding that Negroes had been systematically excluded from both grand and petit juries, since none had ever served on juries within the memory of witnesses, although 45% of the population of the county was Negro. The Superior Court of Mitchell County then directed the jury commissioners to revise the jury list. Georgia law requires the commissioners to "select from the books of the tax receiver upright and intelligent citizens to serve as jurors." The 1964 tax digest, and those prior thereto, were required by Georgia law to be made up from segregated tax returns, and the names of Negroes were designated by having a "(c)" placed opposite their names. The State admits that the revised jury list was made up by reference to the old jury list, which had been condemned, and the 1964 tax digest. Three commissioners testified that they were unaware of the letter "(c) " appearing after Negroes' names in the 1964 digest, that they did not include or exclude anyone on the revised list because of color, that they placed persons on the list who were known to them, and that the revised list had no designation of race on it. While 27.1% of the taxpayers in the county are Negroes, and 42% of the males over 21 are Negroes, only 3 of the 33 prospective grand jurors were Negroes, of whom one served on the 19-member grand jury, and only 7 of the 90 persons used to select a petit jury were Negroes, and none was accepted for the petit jury.


1. The proof offered by petitioners, including the use by the State of a system of jury selection which had been previously

Page 385 U. S. 546

condemned, constituted a prima facie case of purposeful discrimination, which shifted the burden of proof to the State. The State, which submitted no explanation for the continued use of the condemned system and provided no testimony indicating that the 27.1% of the Negroes on the tax digest were not fully qualified, failed to meet the burden of rebutting the prima facie case. Pp. 385 U. S. 550-552.

2. Persons whose state court convictions are set aside for jury discrimination may be retried by the State under procedures which conform to constitutional requirements. Pp. 385 U. S. 552-553.

No. 650, 222 Ga. 103, 114, 149 S.E.2d 130, reversed; No. 253, 112 Ga.App. 328, 145 S.E.2d 83, dismissed.

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