1. Georgia law requires that objections of a defendant to the
composition of a grand jury be raised before indictment.
Petitioner, a Negro of low mentality, was indicted and convicted of
a capital offense, but was not provided with counsel until the day
after he was indicted. Before his arraignment, petitioner moved to
quash the indictment on the ground that Negroes had been
systematically excluded from service on the grand jury. This motion
was denied on the ground that it was made too late.
failure to consider the motion to quash on its
merits was a denial of due process of law, and violated the
Fourteenth Amendment. Pp. 350 U. S.
(a) The indictment of a defendant by a grand jury from which
members of his race have been systematically excluded is a denial
of his right to equal protection of the laws. P. 350 U. S.
(b) Where no opportunity to challenge the grand jury selection
has been afforded a defendant, his right may be asserted by a plea
in abatement or a motion to quash before arraignment. P.
350 U. S.
(c) Assignment of counsel in a state prosecution at such time
and under such circumstances as to preclude the giving of effective
aid in the preparation and trial of a capital case is a denial of
due process of law. Pp. 350 U. S.
2. This case being properly here upon review of the second
judgment of the Georgia Supreme Court therein, this Court has
jurisdiction to consider all of the substantial federal questions
determined in the earlier stages of the litigation, and
reexamination of such questions here is unaffected by a ruling of
the state court that its first decision became the law of the case.
P. 350 U. S.
211 Ga. 339, 85 S.E.2d 773
reversed and remanded.
Page 350 U. S. 86
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner, Amos Reece, a Negro, was convicted of the rape of a
white woman in Cobb County, Georgia. He contends here that
Georgia's rule of practice requiring him to challenge the
composition of the grand jury before indictment violates the Due
Process Clause of the Fourteenth Amendment. The Georgia Supreme
Court affirmed his conviction, 211 Ga. 339, 85 S.E.2d
, and we granted certiorari because of the important issues
involved, 349 U.S. 944.
Reece was arrested on October 20, 1953, and was held in the
county jail until his indictment three days later. On October 24,
the day after his indictment, two local attorneys were appointed by
the trial court to defend him. On October 30, before his
arraignment, Reece moved to quash the indictment on the ground that
Negroes had been systematically excluded from service on the grand
jury. This motion was overruled after a hearing. On the same day,
petitioner was tried, convicted, and sentenced to be electrocuted.
The Supreme Court of Georgia held that the motion to quash was
properly denied because, by Georgia practice, objections to a grand
jury must be made before the indictment is returned, 210 Ga. 578,
82 S.E.2d 10
but reversed the case on another ground, not pertinent here, and
remanded it for a new trial.
Before his second trial, Reece filed a special plea in abatement
which alleged systematic exclusion of Negroes from the jury
commission, the grand jury which indicted him, and the petit jury
about to be put upon him. This plea also stated that petitioner had
neither knowledge of the grand jury nor the benefit of counsel
before his indictment. The State's demurrer to this plea was
sustained, and petitioner was again tried, convicted and sentenced
to be electrocuted. It is this judgment which is here for
Page 350 U. S. 87
At the outset, the State contends that the case is not properly
before us, because petitioner did not apply for a writ of
certiorari within 90 days after the first judgment of the Supreme
Court of Georgia. This contention is clearly without substance. A
timely application for certiorari to review the second judgment was
made, and the case is properly here. 28 U.S.C. § 1257. We have
jurisdiction to consider all of the substantial federal questions
determined in the earlier stages of the litigation, Urie v.
Thompson, 337 U. S. 163
337 U. S.
-173, and our right to reexamine such questions is
not affected by a ruling that the first decision of the state court
became the law of the case, Davis v. O'Hara, 266 U.
This Court over the past 50 years has adhered to the view that
valid grand jury selection is a constitutionally protected right.
The indictment of a defendant by a grand jury from which members of
his race have been systematically excluded is a denial of his right
to equal protection of the laws. Patton v. Mississippi,
332 U. S. 463
Norris v. Alabama, 294 U. S. 587
Rogers v. Alabama, 192 U. S. 226
Carter v. Texas, 177 U. S. 442
Where no opportunity to challenge the grand jury selection has been
afforded a defendant, his right may be asserted by a plea in
abatement or a motion to quash before arraignment, United
States v. Gale, 109 U. S. 65
109 U. S. 72
course, if such a motion is controverted, it must be supported by
evidence, Patton v. Mississippi, supra; Martin v. Texas,
200 U. S. 316
We mention these principles since the State contests the merits
of Reece's claim of systematic exclusion. In the hearing on his
motion to quash before the first trial, he presented uncontradicted
evidence to support the following facts: no Negro had served on the
grand jury in Cobb County for the previous 18 years; the 1950
census showed that the county had a white population of 55,606 and
a Negro population of 6,224; the same census showed
Page 350 U. S. 88
a population of 16,201 male white citizens over 21 years of age,
and 1,710 male Negro citizens over 21 years of age. Petitioner's
motion alleged, and this was not contradicted, that there were 534
names on the grand jury list, and, of this number, only six were
Negroes. Of the six Negroes, one did not reside in the county, and
the other five testified in this proceeding. Two were over 80 years
of age: one was partially deaf and the other in poor health. The
remaining three were 62 years of age. Each of the witnesses had
lived in the county for at least 30 years. None had ever served on
a grand jury nor heard of any other Negro serving on a grand jury
in the county. The Clerk and Deputy Clerk of the court testified
that the jury boxes had been revised in 1952, that there was no
discrimination or systematic exclusion of Negroes from the grand
jury list, that six Negroes were on the list, and that neither had
ever known a Negro to serve on a grand jury in Cobb County.
This evidence, without more, is sufficient to make a strong
showing of systematic exclusion. The sizeable Negro population in
the county, the fact that all-white juries had been serving for as
long as witnesses could remember, and the selection on the jury
list of a relatively few Negroes who would probably be disqualified
for actual jury service all point to a discrimination "ingenious or
ingenuous," Smith v. Texas, 311 U.
, 311 U. S. 132
This evidence placed the burden on the State to refute it,
Patton v. Mississippi, supra,
and mere assertions of
public officials that there has not been discrimination will not
suffice. See Hernandez v. Texas, 347 U.
. However, we do not decide this issue. It is
sufficient to say that petitioner's motion stated, and his evidence
supported, a prima facie
Georgia's rule of practice provides that, when an
"accused has been arrested for the commission of a penal offense
and is committed to jail, he is apprised of the fact
Page 350 U. S. 89
that his case or the charge against him will undergo grand jury
investigation, and it is incumbent upon him to raise objections to
the competency of the grand jurors before they find an indictment
Reece v. State,
210 Ga. 578, 82 S.E.2d
. This rule goes back to 1882, Williams v. State,
Ga. 11, and has been consistently followed in that State. A similar
requirement was considered by this Court in Carter v.
Texas, 177 U. S. 442
that case, the Texas Code of Criminal Procedure provided that a
challenge to the array must be made before the grand jury was
impaneled, and that anyone confined in the jail at the time would,
at his request, be brought into court to make such challenge. The
defendant in Carter
moved to quash the indictment after
the grand jury had been impaneled, but before his arraignment.
Since the grand jury had been impaneled before the commission of
the offense for which the defendant was indicted, this Court held
"never had any opportunity to challenge the array of the grand
jury, and was entitled to present the objection on which he relied
by motion to quash."
177 U.S. at 177 U. S. 447
In the present case, as in Carter,
the right to object to
a grand jury presupposes an opportunity to exercise that right.
United States v. Gale, 109 U. S. 65
109 U. S. 72
Michel v. Louisiana, 350 U. S. 91
We may now turn to the present case to see if Reece was afforded
such opportunity. He was indicted by a grand jury that was
impaneled and sworn eight days before his arrest. It adjourned the
day before his arrest, and was reconvened two days later by an
order which did not list him as one against whom a case would be
presented. Reece is a semi-illiterate Negro of low mentality. We
need not decide whether, with the assistance of counsel, he would
have had an opportunity to raise his objection during the two days
he was in jail before indictment. But it is utterly unrealistic to
say that he had such opportunity when counsel was not provided for
Page 350 U. S. 90
until the day after he was indicted. In Powell v.
Alabama, 287 U. S. 45
Court held that the assignment of counsel in a state prosecution at
such time and under such circumstances as to preclude the giving of
effective aid in the preparation and trial of a capital case is a
denial of due process of law. The effective assistance of counsel
in such a case is a constitutional requirement of due process which
no member of the Union may disregard. Georgia should have
considered Reece's motion to quash on its merits.
In view of this disposition, it is not necessary that we
consider other issues first raised by Reece in his plea in
abatement at the second trial.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.