Williams v. Georgia/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.

To borrow a phrase from Mr. Justice Holmes, the opinion of the Court 'just won't wash.' While I, too, am not deaf to the pleas of the condemned, I cannot ignore the long-established precedents of this Court. The proper course, as has always been followed here, is to recognize and honor reasonable state procedures as valid exercises of sovereign power. We have done so in hundreds of capital cases since I have been on the Court, and I do not think that even the sympathetic facts of this case should make us lose sight of the limitations on this Court's powers.

To see just how far the Court has 'stretched' here, it is only necessary to compare today's majority opinion with Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082, the decision relied on to support the Court's remand. In that case, Patterson and one Norris had been charged in a common indictment. Prior to trial, both interposed constitutional claims of systematic exclusion of Negroes from the jury. Patterson, however, failed to file his bill of exceptions within the time prescribed by state law. The Alabama Supreme Court decided the separate appeals on the same day, denying Norris' claim on the merits Norris v. State, 229 Ala. 226, 156 So. 556, while dismissing Patterson's case as out of time. 229 Ala. 270, 156 So. 567. This Court thereafter reversed Norris' conviction. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. In Patterson, however, the Court was confronted with an independent and adequate state ground which presented an insuperable obstacle to reversal. Nevertheless, it was quite possible that had the Alabama court realized the validity of the objection it had overruled on the merits in Norris, it might have regarded the whole complexion of the case as different and chosen not to rest on a narrow procedural ground in Patterson. This Court, therefore, remanded the case to the Alabama Supreme Court for reconsideration of its decision in the light of the important intervening factor.

Note the magnitude of the 'important intervening factor' here and just how it changes the complexion of the case. The majority relies on the fact that the State '(o)n oral argument here * *  * agreed that the use of yellow and white tickets in this case was, in light of this Court's decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array.' The Solicitor General of Fulton County, the Court reasons, 'had urged (by brief) before the Georgia Supreme Court that no denial of equal protection was involved, and that court may well have been influenced by the contention.'

The Solicitor General of Fulton County presented no oral argument here. Only the State Attorney General, whose sole contention before the Georgia court was that the 'question (was) not ground for extraordinary motion for new trial,' was represented before this Court. The majority's 'important intervening factor,' therefore, is that an Assistant Attorney General of Georgia has now expressed an opinion on a question his superior did not reach in his brief before the Georgia Supreme Court. Since good advocacy would dictate that the Attorney General argue this point before the Georgia court had he thought it substantial, I do not think his office underwent any great change of mind in the interim between that argument and this. On argument, after questioning on the point-which we note was not one of the questions he raised-the Assistant Attorney General stated only what the Attorney General's brief below had intimated. In any event, I am completely at a loss to understand what difference it makes what was argued in the Georgia Supreme Court or conceded here, since the Georgia Supreme Court clearly stated that, but for the procedural objection, Avery would govern:

'Defendant in his motion sets forth a practice which has been     condemned by this court and the Supreme Court of the United      States. However, any question to be considered by this court     must be raised at the time and in the manner required under      the rules of law and practice and procedure in effect in this      State.' 210 Ga. 665, 669, 82 S.E.2d 217, 219.

The majority's other ground for remand is even weaker, relying on a phrase from the Attorney General's brief before the Georgia court-'we do not say that he (Williams) does not have some remedy at law.' The ground asserted is that in the light of this 'intimat(ion)' of the Attorney General, Georgia's court 'should have an opportunity to designate the appropriate remedy.' If Williams has a remedy, he can certainly pursue it as well without this remand; and if he has no other state remedy, it is even clearer that nothing is to be gained by the Court's disposition of the case.

Another difference between this case and Patterson is at once evident. In Patterson, the Court, through Chief Justice Hughes, said:

'We are not convinced that the court, in the presence of such     a determination of constitutional right, confronting the      anomalous and grave situation which would be created by a      reversal of the judgment against Norris, and an affirmance of      the judgment of death in the companion case of Patterson, who      had asserted the same right, *  *  * would have considered      itself powerless to entertain the bill of exceptions or      otherwise to provide appropriate relief. * *  * At least the      state court should have an opportunity to examine its powers      in the light of the situation which has now developed. We should not foreclose that     opportunity.' (Italics supplied.) 294 U.S. at pages 606      607, 55 S.Ct. at page 578.

In this case, unlike Patterson, the Court determines the state law itself. We have always insisted that, if possible, state courts be permitted to decide difficult and uncertain questions of state law before the federal courts do so, even to the point of having the federal courts decline jurisdiction to await the State's ruling. Cf. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. To me nothing could be clearer than that a state question arising in a case which is to be remanded to the state court should be left open for resolution by the State without the pressure of a decision by this Court.

Furthermore, I agree with Mr. Justice MINTON that the majority has misconstrued Georgia's law. As I read the state law, the decisions indicate that the Georgia courts have no power to hear and determine petitioner's extraordinary motion of the merits. Ever since Jordan v. State, 1857, 22 Ga. 545, the Georgia law has been that the defendant must challenge the array when the panel is 'put upon' him and not thereafter. And since it is too late to raise such a challenge in a motion for new trial, Moon v. State, 1882, 68 Ga. 687, certainly the objection cannot be made in an extraordinary motion coming, as here, seven months after verdict. See also Cumming v. State, 1923, 155 Ga. 346, 117 S.E.2d 378. In fact, as late as 1941, Georgia's highest court rejected a claim of discrimination in the selection of jurors 'for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived.' Wilcoxon v. Aldredge, 192 Ga. 634, 637, 15 S.E.2d 873, 876, 146 A.L.R. 365. This was a capital case, and it was conceded that the prisoner's claim had substantive validity. But even in those extreme circumstances the Georgia Supreme Court did not consider the objection available after trial.

The Georgia Court of Appeals has consistently taken the same position. In Ivey v. State, 1908, 4 Ga.App. 828, 831, 62 S.E. 565, and Williams v. State, 1923, 31 Ga.App. 173, 174, 120 S.E. 131, 132, it was held that 'If he (defendant) does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him.'

In reaching the opposite conclusion, i.e., that the Georgia courts have discretionary authority to consider the petitioner's untimely objection in the circumstances of this case, the majority relies on two factors. First, the Georgia court in the instant case, after holding that petitioner had waived his objection by failing to raise it at the proper time, went on to find that the proffered justification was inadequate as a matter of pleading and as a matter of fact. But it is difficult to see how this separately numbered alternative ground can impair the court's other decision that, excuse or no excuse, petitioner had waived his claim 'once and for all.' Second, it is urged that the Georgia courts frequently exercise their discretion in favor of untimely objections directed at individual jurors 'challenges to the poll' as they are called in Georgia. The majority cites no case, however, where such discretion was exercised on a challenge to the array, and not one of the majority's individual juror cases is mentioned, much less distinguished, in the Georgia court's opinion in this case. Since courts usually distinguish apparent conflicts, it is fair to assume that the Georgia court considered the two types of challenge to be governed by entirely different rules. This conclusion is buttressed both by the distinction drawn between these types under Georgia law and by the differing considerations controlling their allowance.

Challenges to the array are 'directed to the whole group collectively for causes in the nature of irregularities in the form, manner and making up of the panel.' Davis and Shulman, Georgia Practice and Procedure, p. 454. Challenges to the poll are 'directed solely for objections which are inherent in the individual jurors,' Georgia Practice and Procedure, supra, at 455. Circumstances require that challenges to the array be made before trial. If permitted thereafter-and upheld-the judgments in many, if not all, other cases tried before juries obtained from the same panel would be subject to like attack. For example, illegality in the array summoned for March 9, 1953, from which the Williams jury was selected, might result in the overturning of all verdicts returned in the county during their tenure. This would be both expensive and timewasting, as well as disruptive of the proper administration of justice. Hence Georgia requires a challenge to be made before trial in order to give the judge an opportunity to correct the irregularity. On the other hand, a challenge to a petit juror or to the poll merely affects the one verdict of that jury of twelve rather than all the verdicts of the panel of one hundred and twenty.

The majority dwells on the extreme circumstances of this case, discusses in great detail the Georgia cases affording discretionary relief in less strong cases involving individual jurors, and warns that 'we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.' Although I find it difficult to ascertain exactly what ground the majority could give for striking down the Georgia result, it is clear to me that no theory ever before accepted by this Court could lead to reversal.

It is elementary that this Court has no jurisdiction over a case here from a state court where there is an independent and adequate state ground supporting the conclusion reached below. A purported state ground is not independent and adequate in two instances. First, where the circumstances give rise to an inference that the state court is guilty of an evasion-an interpretation of state law with the specific intent to deprive a litigant of a federal right. Second, where the state law, honestly applied though it may be, and even dictated by the precedents, throws such obstacles in the way of enforcement of federal rights that it must be struck down as unreasonably interfering with the vindication of such rights.

It is obvious that the Georgia court has not been guilty of 'evasion.' Although the Georgia court's interpretation of state law may not be free from doubt, it is not possible to say that the Georgia decision is without 'fair support' in the previous cases. I regard it also as noteworthy that Presiding Justice Wyatt wrote this opinion for the Georgia Supreme Court. It was he who, in the Georgia court's decision in Avery, said in dissent:

'I cannot agree with the ruling (as to discrimination) for     the reason, in my opinion, that this practice is conclusive      evidence of discrimination, and for that reason the case      should be reversed.' 209 Ga. 116, 131, 70 S.E.2d 716, 726.

In this ruling he went further in protecting the integrity of the jury system than we ourselves thought necessary. Compare Avery v. Georgia, 345 U.S. 559, 562-563, 73 S.Ct. 891, 892-893, 97 L.Ed. 1244 (petitioner established 'a prima facie case of discrimination' which the State failed to rebut). One who had so acted would hardly be attempting to evade the very federal right he had previously upheld so strongly.

Similarly, the Georgia procedure is not unduly burdensome. The majority concedes that '(a) state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power.' Even if the majority could somehow strike down the Georgia court's holding that it lacked discretion, it is not enough to show that Georgia has the power and refuses to exercise it. There is no case to support the implication that the exercise of discretion against a federal right is, without more, an evasion. See Brown v. Allen, 344 U.S. 443, 484-486, 73 S.Ct. 397, 421-422, 97 L.Ed. 469. Indeed, it would seem that there would have to be a withholding of discretion for the purpose of depriving Williams of a federal right. There is nothing even approaching that here.

A state court's decision cannot be overturned if any one of the grounds supporting it is independent and adequate. There is one ground here which appears so unassailable that the majority does not even attack it. Georgia law makes a showing of due diligence on the part of the movant a prerequisite to granting extraordinary motions for new trial. The state court in this case found that due diligence had not been properly pleaded, and that the facts of which the Georgia court could take notice conclusively demonstrated that diligence was indeed completely lacking.

On the first ground, there is clearly substantial support in the prior state decisions. Petitioner's attorney stated that 'he did not know of the facts (establishing the constitutional claim) before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence.' It had been held in at least four prior Georgia decisions that such conclusory pleading of diligence was inadequate to support a motion for a new trial or an extraordinary action for the same. Taylor v. State, 132 Ga. 235, 63 S.E. 1116; King v. State, 174 Ga. 432, 163 S.E. 168; Redding v. State, 183 Ga. 704, 189 S.E. 514; Edge v. State, 200 Ga. 257, 36 S.E.2d 673.

On the second ground, the Georgia opinion speaks for itself:

'Furthermore, the facts and circumstances contradict the     statements made in the affidavits. When the instant case came     on for trial in Fulton Superior Court on March 10, 1953, the      case of Avery v. State had been tried in the same county and      that case had been affirmed by this court on April 14, 1952,      and was pending in the United States Supreme Court. * *  * The      opinion of this court affirming the lower court in the Avery      case sets out fully the methods and practices employed in the      selection and empaneling of juries in Fulton County,      including the practice of putting the names of white jurors      on White slips of paper and the names of Colored jurors on      yellow slips of paper. Due diligence would certainly have     required the defendant and his attorney to make themselves      familiar with the opinions of this court on the question now      raised.' 210 Ga. 665, 668, 82 S.E.2d 217, 219.

It is evident on this record that, even if the Georgia court is deemed to have discretion in this matter, it could adhere to its present decision and not be reversed in this Court without a major departure from our doctrines requiring respect for state procedural rules affording a 'reasonable opportunity' to present federal questions. Cf. Parker v. Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886.

Had the state court possessed the power, it might have been desirable to have permitted petitioner to adjudicate his substantial constitutional claim instead of sending him to his death because his attorney failed to take advantage of the usual opportunity afforded by the state law. On the other hand, had the jury acquitted petitioner, he would not have complained about any unconstitutionality in its selection. A State may be influenced by the unfairness of allowing the litigant who remains silent two chances for acquittal while giving the diligent litigant only one. And orderly administration of the laws often imposes hardships upon those who have not properly preserved their rights. In any event, the resolution of these conflicting interests should be a matter wholly for the Georgia courts. See Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530.