Notwithstanding a timely challenge, on the ground of racial
discrimination contrary to the Equal Protection Clause of the
Fourteenth Amendment, of the array of petit jurors selected to try
his case in a state court, petitioner, a Negro, was convicted of
rape. After the names of prospective jurors had been selected by
jury commissioners, the names of white persons were printed on
white tickets and the names of Negroes on yellow tickets, which
were placed together in a jury box. A judge then drew a number of
tickets from the box, and he testified, without contradiction, that
he had not discriminated in the drawing. The tickets drawn were
handed to a sheriff, who entrusted them to a clerk, whose duty it
was to "arrange" the tickets and to type in final form the list of
persons to be called to serve on the panel. About 60 persons were
on the panel from which the jury was selected, and none of them was
a Negro, although many Negroes were available for service.
the conviction is reversed. Pp. 345 U. S.
(a) On the record in this case, petitioner made a prima
showing of discrimination in the organization of this
particular jury panel. Pp.
345 U. S. 561
(b) Petitioner having proved a prima facie
discrimination in the selection of the jury, the burden was upon
the State to overcome this prima facie
case, and it failed
to do so. Pp. 345 U. S.
209 Ga. 116, 70 S.E.2d 716
In a Georgia trial court, petitioner was convicted of rape and
sentenced to death. The Supreme Court of Georgia affirmed. 209 Ga.
116, 70 S.E.2d 716
This Court granted certiorari. 345 U.S. 903. Reversed,
345 U. S.
Page 345 U. S. 560
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Petitioner was tried for rape in the Superior Court of Fulton
County, Georgia. He was convicted and sentenced to death. The
Supreme Court of Georgia affirmed after overruling petitioner's
contention that the jury which convicted him had been selected by a
means repugnant to the Equal Protection Clause of the Fourteenth
Amendment. [Footnote 1
granted certiorari to review this claim. 345 U.S. 903.
The indictment, upon which petitioner was tried, was returned by
a grand jury in Walker County, Georgia. A change of venue was
granted, and the cause removed to Fulton County. By proper
pleadings, petitioner, a Negro, challenged the array of petit
jurors selected to try his case; he charged that discrimination had
been practiced against members of his race. Testimony was then
taken, and thereafter the trial court overruled the challenge.
The salient facts, developed in this hearing, are undisputed.
Under Georgia law, the task of organizing panels of petit jurors
for criminal cases falls upon a county Board of Jury Commissioners.
In discharging this responsibility, the Commissioners, at stated
intervals, select prospective jurors from the county tax returns.
Their list is then printed; the names of white persons on this list
are printed on white tickets; the names of Negroes are printed on
yellow tickets. These tickets -- white and yellow -- are placed in
a jury box. A judge of the Superior
Page 345 U. S. 561
Court then draws a number of tickets from the box. The tickets
are handed to a sheriff who in turn entrusts them to a clerk. It is
the clerk's duty to "arrange" the tickets and to type up, in final
form, the list of persons to be called to serve on the panel.
Approximately sixty persons were selected to make up the panel
from which the jury in this particular case was drawn. The judge
who picked out the tickets -- bearing the names of persons
composing the panel -- testified that he did not, nor had he ever,
practiced discrimination in any way in the discharge of that duty.
There is no contradictory evidence. Yet the fact remains that there
was not a single Negro in that panel. The State concedes that
Negroes are available for jury service in Fulton County, and we are
told that Negroes generally do serve on juries in the courts of
that county. The question we must decide, based upon our
independent analysis of the record, [Footnote 2
] is whether petitioner has made a sufficient
showing of discrimination in the organization of this particular
panel. We think he has.
The Jury Commissioners, and the other officials responsible for
the selection of this panel, were under a constitutional duty to
follow a procedure -- "a course of conduct" -- which would not
"operate to discriminate in the selection of jurors on racial
grounds." Hill v. Texas, 316 U. S. 400
316 U. S. 404
If they failed in that duty, then this conviction must be reversed
-- no matter how strong the evidence of petitioner's guilt. That is
the law established by decisions of this Court spanning more than
seventy years of interpretation of the meaning of "equal
protection." [Footnote 3
Page 345 U. S. 562
Petitioner's charge of discrimination in the jury selection in
this case springs from the Jury Commissioners' use of white and
yellow tickets. Obviously that practice makes it easier for those
to discriminate who are of a mind to discriminate. Further, the
practice has no authorization in the Georgia statutes -- which
simply enjoin the Commissioners to select "upright and intelligent
men to serve as jurors. . . ." [Footnote 4
] It is important to note that the Supreme Court
of Georgia, in this case, specifically disapproved of the use of
separately colored tickets in Fulton County, saying that it
constituted "prima facie
evidence of discrimination."
We agree. Even if the white and yellow tickets were drawn from
the jury box without discrimination, opportunity was available to
resort to it at other stages in the selection process. And, in view
of the case before us, where not a single Negro was selected to
serve on a panel of sixty -- though many were available -- we think
that petitioner has certainly established a prima facie
case of discrimination.
The court below affirmed, however, because petitioner had failed
to prove some particular act of discrimination by some particular
officer responsible for the selection of the jury, and the State
now argues that it is petitioner's burden to fill this "factual
vacuum." We cannot agree. If there is a "vacuum," it is one which
the state must fill, by moving in with sufficient evidence to
dispel the prima facie
case of discrimination. We have
held before, [Footnote 5
the Georgia Supreme Court, itself, recently followed these
Page 345 U. S. 563
decisions, [Footnote 6
that, when a prima facie
case of discrimination is
presented, the burden falls, forthwith, upon the state to overcome
it. The State failed to meet this test.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
Avery v. State,
1952, 209 Ga. 116, 70 S.E.2d
Norris v. Alabama, 294 U. S. 587
E.g., Neal v. Delaware, 103 U.
(1881); Rogers v. Alabama, 192 U.
(1904); Norris v. Alabama, supra; Pierre v.
Louisiana, 306 U. S. 354
(1939); Cassell v. Texas, 339 U.
Ga.Code Ann. § 59-106. See Crumb v. State,
205 Ga. 547,
54 S.E.2d 639 (1949).
Norris v. Alabama, supra,
at 294 U. S.
-595, 294 U. S. 598
Hill v. Texas, 316 U. S. 400
316 U. S.
-406 (1942); Patton v. Mississippi,
332 U. S. 463
Crumb v. State, supra.
MR. JUSTICE REED, concurring.
I concur in the reversal. My concurrence is based on the
undisputed facts presented by the record. The facts that make a
case of discrimination in the selection of
petitioner's jury are as follows. The population of Fulton County
is 691,797. Negroes comprise 25% or 165,814. The tax receiver's
digest from which the jury list is selected has 105,035 white
citizens and 17,736 Negroes -- 14%. The jury list for the year in
question had 20,509 white and 1,115 Negroes -- 5%. From that list a
number, 150 to 200, were drawn for service on each of the divisions
of the court. Evidently these were for a week or a term's service.
The venire from which the trial jury for Avery was selected
numbered 60. All were white.
These facts establish a prima facie
discrimination which the record does not rebut.
MR. JUSTICE FRANKFURTER, concurring.
It is undisputed that the drawings here were made from a box
containing white and colored slips differentiated according to
racial lines, white for white veniremen and yellow for colored. The
slips were indiscriminately
Page 345 U. S. 564
placed in the box and were drawn from the box by a county court
judge. There was testimony from a recent member of the county Board
of Jury Commissioners that the use of these white and yellow slips
was designed for purposes of racial discrimination, and it has not
been shown that they could serve any other purpose. So far as the
particular facts of this case are concerned, we may accept the
testimony of the judge who drew the slips from the box as to the
honesty of his purpose; that testimony does not refute the fact
that there were opportunities to discriminate, as experience tells
us there will inevitably be when such differentiating slips are
used. In this case, the opportunities are obvious, partly because
the aperture in the box was sufficiently wide to make open to view
the color of the slips and partly because of the subsequent use or
abuse that could be made of the slips, however fairly drawn.
However that may be, opportunity for working of a discriminatory
system exists whenever the mechanism for jury selection has a
component part, such as the slips here, that differentiates between
white and colored; such a mechanism certainly cannot be
countenanced when a discriminatory result is reached. The stark
resulting phenomenon here was that, somehow or other, despite the
fact that over 5% of the slips were yellow, no Negro got onto the
panel of 60 jurors from which Avery's jury was selected. The mind
of justice, not merely its eyes, would have to be blind to
attribute such an occurrence to mere fortuity.
Accordingly, I concur in the judgment.