Williams v. Georgia/Dissent Minton

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

Georgia has a rule of law that the jury panel must be challenged at the threshold, that is, as Georgia expresses it, before the panel is 'put upon the defendant.' If the panel is not thus challenged, the issue cannot later be raised and is considered as waived 'once and for all.' Williams v. State, 210 Ga. 665, 669, 82 S.E.2d 217, 220. Ga.Code Ann., § 59-803. See Jordan v. State, 22 Ga. 545.

This is a reasonable rule. It gives the State an opportunity to meet the challenge and to justify the array, or, if it is improperly constituted, an opportunity to correct it.

In the instant case, the challenge to the array was not presented at the time the panel was put upon the petitioner-defendant. If the defendant thus fails to challenge the array before it is put upon him, he may not raise the question as to its legality for the first time in a motion for a new trial. Lumpkin v. State, 152 Ga. 229, 231, 109 S.E. 664, 665. Such a requirement complies with the Federal Constitution. Brown v. Allen, 344 U.S. 443, 480, 73 S.Ct. 397, 419, 97 L.Ed. 469.

Since petitioner did not and could not raise the question on a motion for new trial for the first time, it would seem that he could not raise it on an extraordinary motion for a new trial. The trial court dismissed the motion, and the State Supreme Court affirmed. First, the court held that the petitioner could not challenge the array for the first time by motion for a new trial or extraordinary motion for a new trial. The Georgia Supreme Court on that said:

'It is settled law in this State that, when a panel of jurors     is put upon the prisoner, he should challenge the array for      any cause which would go to show that it was not fairly and      properly put upon him, and that if he fails to do so, the      objection is waived and can not thereafter be made a ground      of a motion for new trial. See Lumpkin v. State, 152 Ga. 229,     109 S.E. 664; Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156;      Cumming v. State, 155 Ga. 346, 117 S.E. 378; Moon v. State, 68 Ga. 687; and Williams v. State,      31 Ga.App. 173, 120 S.E. 131. In the instant case, the     defendant made no objection to the jury when the panel was      put upon him, and made no objection until he filed this      extraordinary motion for new trial after a new trial had been      denied and that judgment affirmed by this court. See Williams     v. State, supra. It follows, therefore, that the judgment of     the court below dismissing the extraordinary motion for new      trial was not error.

'The defendant and his attorney state that they did not know     of the facts set out in grounds one and two of the motion for      new trial, and 'that the same could not have been discovered      by him in the exercise of ordinary diligence.' This is not      sufficient to excuse the defendant from the necessity of      presenting his written challenge to the array of traverse      jurors when the panel was put upon him. See, in this     connection, Lumpkin v. State, supra; Cornelious v. State,      supra; Redding v. State, 183 Ga. 704, 189 S.E. 514; Edge v.      State, 200 Ga. 257, 36 S.E.2d 673. It follows, under the     decisions of this court above cited, it was not error to      dismiss the extraordinary motion for new trial.' 210 Ga. 665,      667-668, 82 S.E.2d 217, 218-219.

After deciding this matter of state law, the Supreme Court of Georgia further held that the extraordinary motion was insufficient. The defendant, in his affidavit supporting the motion, deposed: "The defendant did not at the time of his trial. * *  * have any information concerning the selection, drawing, organizing, and empaneling of the jury panel put upon him on his trial, but assumed that the jury was a legal jury." Id., 210 Ga. at page 668, 82 S.E.2d at page 219. Also defendant's attorney deposed in his supporting affidavit that he "did not know of the facts set out in the first and second grounds of the extraordinary motion for new trial * *  * 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." Ibid.

Such allegations, the court held, were 'merely opinion, without sufficient facts being shown by which the court could judge whether due diligence had been exercised, and are not sufficient to support an extraordinary motion for new trial. Edge v. State, supra; Redding v. State, supra.' Ibid.

Thus the Georgia Supreme Court held, first, that the challenge to the array must be made when the array is put upon the defendant and cannot be made later by motion for a new trial or extraordinary motion for new trial; and, second, that the grounds for the latter motion were insufficient.

This first holding is a well-established rule of law of Georgia and does not seem to have been applied discriminatorily so as to deny petitioner the equal protection of the law. He had the same right and opportunity to raise the question as anyone else.

The promulgation of such a rule of law is, as we have pointed out, fair and reasonable and cannot be said to deny due process of law. Georgia has provided a reasonable time and manner in which the question could be raised. Petitioner did not take advantage of it, probably because, as his attorney alleged in his affidavit, he 'devoted his time and efforts to ascertaining the nature of the evidence to be presented by the State of Georgia upon the trial.'

This Court cites a number of Georgia cases in which extraordinary motions were granted by the Georgia Supreme Court where an individual juror without knowledge of the facts was permitted to sit even though disqualified. But, in each of these cases, proper motions in due form and sufficient were presented and the question raised at the first opportunity.

This Court now says that the Georgia Supreme Court has the power to grant the petitioner's motion. I suppose that it has, but I would not think that it had denied a federal constitutional right if it did not change its rule. In fact, I think it would lead to absurd results if it changed its rule that the challenge to the array must be made at the threshold. The defendant, knowing of an error in the constitution of the array, could lay low and always have a built-in error on which he could rely if he did not like the results at the trial. Georgia is not bound to change its rule on penalty of a violation of the Federal Constitution. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, does not decide this case because in that proceeding the challenge was timely made.

We do not sit as a legal critic to indicate how we think courts should act. If a federal constitutional right is not presented, we have no duty to perform. There was no denial of equal protection of the law or of due process. This case was disposed of by the Georgia Supreme Court altogether on state grounds. In such circumstances our duty is clear. As we stated in Edelman v. California, 344 U.S. 357, 358-359, 73 S.Ct. 293, 295, 97 L.Ed. 387:

'It is clear that this Court is without power to decide     whether constitutional rights have been violated when the      federal questions are not seasonably raised in accordance      with the requirements of state law. Hulbert v. City of     Chicago, 1906, 202 U.S. 275, 26 S.Ct. 617, 50 L.Ed. 1026;     Mutual Life Ins. Co. v. McGrew, 1903, 188 U.S. 291, 308, 23     S.Ct. 375, 378, 47 L.Ed. 480. Noncompliance with such local     law can thus be an adequate state ground for a decision      below. * *  * '

Therefore, I would dismiss the writ of certiorari as improvidently granted.