In this case, before the Court for the second time, petitioner,
a Negro sentenced to death for rape, again contends that the
confession used at his trial was coerced through physical abuse and
that the juries which indicted and convicted him were
discriminatorily selected. This Court, without reaching these
claims, previously remanded the case for a hearing on the
voluntariness of the confession,
385 U. S. 385 U.S.
538, noting that the State had failed to produce as witnesses
police officers who had been present at the time the petitioner
claimed he was mistreated, and had thus failed to rebut
petitioner's testimony regarding physical abuse prior to his
confession. Though the facts as to the composition of the juries
showed the percentage of Negroes listed on the racially segregated
county tax digests from which the jury lists were compiled was far
larger than such percentages on the jury lists, the State produced
only a jury commissioner's testimony that he did not discriminate
in compiling the lists. Following this Court's remand, the judge
who had presided at petitioner's trial, without hearing further
testimony and solely on the basis of the record previously before
this Court, decided that the confession was voluntary, refused to
decide other issues, and denied a new trial. The Georgia Supreme
Court affirmed.
Held:
1. The State has again not adequately rebutted petitioner's
claim that the confession resulted from coercion, and its second
failure to produce the police officers as witnesses supports the
conclusion that their testimony would not have rebutted
petitioner's.
2. The manner in which the juries which indicted and convicted
petitioner were selected was unconstitutional.
Whitus v.
Georgia, 385 U. S. 545.
Certiorari granted; 223 Ga. 465,
156 S.E.2d 65,
reversed and remanded.
Page 389 U. S. 405
PER CURIAM.
This case is before us for the second time. Last Term we granted
certiorari to consider five constitutional questions raised by
petitioner in challenging his conviction for rape and his
accompanying death sentence. 384 U.S. 998 (1966). Because we
decided the case on the ground that petitioner had not received the
hearing on the voluntariness of a confession introduced against him
required by our decision in
Jackson v. Denno, 378 U.
S. 368 (1964), we did not reach the other issues argued
by the parties.
385 U. S. 385 U.S.
538 (1967).
On remand, the case was submitted to the judge who had presided
at petitioner's original trial on the basis of the printed record
previously before this Court. On that record alone, the trial judge
determined that petitioner's confession had been voluntary, and
denied a new trial. The trial court specifically refused to pass on
any of the other questions previously briefed and argued here,
holding that the prior rulings on these issues by the Georgia
Supreme Court constituted the law of the case. The Georgia Supreme
Court affirmed, upholding the trial court on all points.
In his present application, petitioner raises again two of the
four issues not reached in our previous decision in this case: the
voluntariness of his confession and the composition of the juries
by which he was indicted and tried.
*
In response to the State's previous argument that "there was no
evidence to make any issue of voluntariness" and
Page 389 U. S. 406
therefore there was no need to apply
Jackson v. Denno,
Mr. Justice Clark stated:
"We cannot agree. There was a definite, clear-cut issue here.
Petitioner testified that Doctor Jackson physically abused him
while he was in his office, and that he was suffering from that
abuse when he made the statement, thereby rendering such confession
involuntary and the result of coercion. The doctor admitted that he
saw petitioner on the floor of his office; that he helped him
disrobe and that he knew that petitioner required hospital
treatment because of the laceration over his eye, but he denied
that petitioner was actually abused in his presence. He was unable
to state, however, that the state patrolmen did not commit the
alleged offenses against petitioner's person because he was not in
the room during the entire time in which the petitioner and the
patrolmen were there. In fact, the doctor was quite evasive in his
testimony, and none of the officers present during the incident
were produced as witnesses. Petitioner's claim of mistreatment,
therefore, went uncontradicted as to the officers, and was in
conflict with the testimony of the physician."
385 U.S. at
385 U. S.
543.
Thus, in remanding the case for a hearing on voluntariness, we
indicated to the State that, as the evidence then stood, it had
failed adequately to rebut petitioner's testimony that he had been
subjected to physical violence prior to his confession. The State
had every opportunity to offer the police officers, whose failure
to testify had already been commented upon here, to contradict
petitioner's version of the events. Its failure to do so when given
a second chance lends support to the conclusion that their
testimony would not, in fact, have rebutted petitioner's.
Page 389 U. S. 407
It needs no extended citation of cases to show that a confession
produced by violence or threats of violence is involuntary and
cannot constitutionally be used against the person giving it.
Beecher v. Alabama, ante, p.
389 U. S. 35. The
reliance by the State on subsequent warnings made to petitioner
prior to his confessing is misplaced. Petitioner had been in the
continuous custody of the police for over eight hours and had not
been fed at all during that time. He had not been given access to
family, friends, or counsel at any point. He is an illiterate, with
only a third grade education, whose mental capacity is decidedly
limited. Under such circumstances, the fact that the police may
have warned petitioner of his right not to speak is of little
significance.
See Beecher v. Alabama, supra, at
389 U. S. 37, n.
4.
Compare Fikes v. Alabama, 352 U.
S. 191 (1957).
Petitioner also contends that he was indicted and tried by
juries from which members of his race had been unconstitutionally
excluded. The facts reveal that the grand and petit jury lists were
drawn from the county tax digests which separately listed taxpayers
by race in conformity with then existing Georgia law. Negroes
constituted 24.4% of the individual taxpayers in the county.
However, they amounted to only 4.7% of the names on the grand jury
list and 9.8% of the names on the traverse jury list from which
petitioner's grand and petit juries were selected. The State's only
response to that showing was to call one of the jury commissioners
as a witness; the jury commissioner testified that he or one of the
other commissioners knew personally every qualified person in the
county and did not discriminate in selecting names for the jury
lists. The facts in this case make it virtually indistinguishable
from
Whitus v. Georgia, 385 U. S. 545
(1967). Accordingly, it is clear that the juries by which
petitioner was indicted and tried were selected in a manner
Page 389 U. S. 408
that does not comport with constitutional requirements.
See
also Jones v. Georgia, ante, p.
389 U. S. 24.
The petition for a writ of certiorari is granted, the judgment
of the Supreme Court of Georgia is reversed, and the case is
remanded to that court for further proceedings not inconsistent
with this opinion.
It is so ordered.
* The State has not filed a response. While ordinarily we would
call for a response before deciding a case summarily, the exact
issues presented now were briefed and argued fully by the State and
petitioner last Term. Since the proceedings below on remand
consisted solely of a reconsideration of the printed record
previously before us, we see no need for another presentation of
the arguments already presented to us by the State.