Avery v. Georgia/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. We granted certiorari to review this claim. 345 U.S. 903, 73 S.Ct. 651.

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 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, 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. State of Texas, 1942, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559. 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.'

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 * *  * .' 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'. (70 S.E.2d 722.)

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, and the Georgia Supreme Court, itself, recently followed these decisions, 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.

Reversed.