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decided: June 6, 1955.



Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan

Author: Frankfurter

[ 349 U.S. Page 376]

 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The Court has here under review the decision of a state court rejecting a claim of infirmity in a conviction for murder based on a constitutional ground raised for the first time in an extraordinary proceeding after the conviction had been affirmed on appeal. Respect for the State's administration of criminal justice requires a detailed narrative of the procedural course of this litigation and an adequate consideration of the legal factors relevant to our disposition.

Petitioner, a Negro, was convicted in Fulton County, Georgia, of the murder of a white man and sentenced to death. According to the allegations before us, the petit jury which convicted him was selected in the following manner:

On February 18, 1953, a judge of the Fulton County Superior Court selected from a box the names of prospective jurors. The names of white persons were on white tickets and the names of Negroes were on yellow tickets. The tickets were handed to a deputy sheriff, who in turn gave them to a deputy clerk for listing. The named jurors were subsequently summoned, some were excused, and the remaining 120 were available for the ten panels of twelve jurors each to serve in the trial of civil and criminal cases in the Fulton County Superior Court for the week of March 9, 1953. Of the 120 jurors, four were Negroes, and all four were assigned to the criminal docket.

On March 10, 1953, a panel of 48 of the 120 jurors was "put upon" Williams at his trial. Thirteen jurors, including

[ 349 U.S. Page 377]

     three of the four Negroes, were excused for cause. The State peremptorily challenged the fourth Negro, so that no Negroes served on the jury of twelve which was finally selected to try Williams.

The trial, which immediately followed the selection of the jury, lasted one day. Twenty-three witnesses appeared against Williams. His only defense was a short unsworn statement to the effect that he had not committed the crime and that he had been "afraid" when he signed the written confession introduced against him.

Williams' court-appointed attorney filed a formal motion for new trial on March 27, 1953, and a more detailed amendment to the motion on June 29, 1953. The motion was overruled, and an appeal to the Georgia Supreme Court followed. On October 14, 1953, that court affirmed the judgment. 210 Ga. 207, 78 S. E. 2d 521.

On December 1, 1953, Williams' counsel filed in the trial court an extraordinary motion for new trial under Ga. Code Ann., § 70-303.*fn1 In this motion he alleged for the first time that Williams had been denied equal protection of the laws under the Fourteenth Amendment to the United States Constitution by the manner in which the petit jury had been selected, organized, impaneled and challenged. An affidavit by Williams accompanied the motion, stating that at the time of trial he had no knowledge of the methods used to select the jury. A similar affidavit by his counsel stated further that "the same

[ 349 U.S. Page 378]

     could not have been discovered by him [the counsel] in the exercise of ordinary diligence." The law partner of Williams' counsel submitted a third affidavit to the effect that he had taken no part in the trial or in its preparation.

On January 18, 1954, the trial court dismissed the extraordinary motion for new trial. An appeal was taken to the Georgia Supreme Court. In the appeal, reliance was placed almost exclusively upon the case of Avery v. Georgia, 345 U.S. 559, for the claim that Williams had been denied equal protection of the laws. The pertinence of that case to this turns on the time sequence in the two cases*fn2 as well as on the relevant substantive facts.

Avery was convicted of rape on September 20, 1951, in Fulton County, Georgia -- the same county in which Williams was tried a year and a half later. Avery's petit jury was drawn with yellow and white tickets, precisely in the manner used later in the case of Williams. In Avery's case, no Negroes appeared on the list of 60 jurors put upon him at the trial, whereas here, four Negroes appeared on the list of 120 jurors from which Williams' jury was selected. Avery, however, challenged the array when the jury was put upon him; Williams did not. Avery's challenge was overruled, and after trial he appealed on the ground of discrimination in the selection of the jury. The Georgia Supreme Court disapproved of the use of yellow and white tickets but affirmed the judgment on the ground that no discrimination was actually shown.*fn3

[ 349 U.S. Page 379]

     Certiorari in the Avery case was filed in this Court on July 28, 1952, nine weeks before the alleged murder in the Williams case. The ground, as here, was that the use of different-colored tickets for whites and Negroes deprived the defendant of equal protection of the laws. Avery's petition for certiorari was granted March 9, 1953, the day before the petit jury was put upon Williams. This Court reversed the Avery case on May 25, 1953, holding that Avery had made out a prima facie case of an unconstitutional discrimination by showing the use of different-colored tickets which the State had not rebutted.

While this Court's decision in the Avery case was thus rendered over two months after Williams' trial, it came a month before the amendment to his formal motion for new trial. Yet Williams' counsel did not rely upon the ground raised by the Avery decision until some six months later in his extraordinary motion for new trial.

As already stated, the extraordinary motion was dismissed by the trial court, and Williams again appealed to the Georgia Supreme Court. That court affirmed the dismissal of the extraordinary motion. The court concluded that Williams, having failed to challenge the array when put upon him, had waived any objections to the jury's selection. The affidavits of Williams, his counsel, and his counsel's partner were deemed insufficient to excuse Williams' failure to challenge the array at the outset of the trial.

The court did not rest on this consideration. It urged that the facts inherent in the case contradicted the affidavits. The court said that its own decision in the Avery

[ 349 U.S. Page 380]

     case, prior to the Williams trial, had fully set out the practice of using different-colored tickets in the selection of juries. "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. It follows that, for this reason, the motion for new trial was not sufficient as an extraordinary motion for new trial." 210 Ga. 665, 668, 82 S. E. 2d 217, 219.

In view of the entanglement of this case with our decision in Avery, we granted certiorari. 348 U.S. 854. Since the attorney appointed by the Georgia court advised the Clerk of this Court that he would not be in a position to present oral argument before this Court,*fn4 we appointed

[ 349 U.S. Page 381]

     here, however, the State, with commendable regard for its responsibility, 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. We need only add that it was the system of selection and the resulting danger of abuse which was struck down in Avery and not an actual showing of discrimination on the basis of comparative numbers of Negroes and whites on the jury lists. The question now before us, in view of the State's concession, is whether the ruling of the Georgia Supreme Court rests upon an adequate nonfederal ground, so that this Court is without jurisdiction to review the Georgia court.

A state procedural rule which forbids the raising of federal questions at late stages in the case, or by any

[ 349 U.S. Page 383]

     other than a prescribed method, has been recognized as a valid exercise of state power.*fn6 The principle is clear enough. But the unique aspects of the never-ending new cases that arise require its individual application to particular circumstances. Thus, we would have a different question from that before us if the trial court had no power to consider Williams' constitutional objection at the belated time he raised it. But, where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, 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.*fn7 A state court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner.

The Georgia courts have indicated many times that motions for new trial after verdict are not favored, and that extraordinary motions for new trial after final judgment are favored even less.*fn8 But the Georgia statute provides for such motion,*fn9 and it has been granted in "exceptional" or "extraordinary" cases. The general rule is that the granting or denying of an extraordinary motion

[ 349 U.S. Page 384]

     for new trial rests primarily in the discretion of the trial court, and the appellate court will not reverse except for a clear abuse of discretion.*fn10 In practice, however, the Georgia appellate courts have not hesitated to reverse and grant a new trial in exceptional cases. For example:

In Wright v. Davis, 184 Ga. 846, 193 S. E. 757 (1937), the defendant was sentenced to death, his motion for new trial was overruled, and the judgment was affirmed on appeal by the Georgia Supreme Court. Three months after the affirmance the defendant made an extraordinary motion for new trial on the ground that an ex-convict had obtained a seat on the jury by impersonating his father, whose name was properly on the jury list. The trial court denied the extraordinary motion. The Georgia Supreme Court granted mandamus and made it absolute. It said:

"In the instant case we are of the opinion that the extraordinary motion for a new trial and the proffered amendment presented a state of facts which, standing without dispute, required as a matter of law that a new trial should be granted. . . .

". . . The verdict itself shows that the defendant was not benefited, as he received the extreme penalty, and it is clear that he was deprived of his right to have a jury composed entirely of upright men. Code, §§ 2-4502, 59-106. It will not do to speculate on whether the accused suffered actual injury, when so vital a right has been violated. There are some conditions from which injury will be presumed. . . ." (184 Ga., at 851, 853, 193 S. E., at 760.)

[ 349 U.S. Page 385]

     The court rejected the State's contention that the defendant had not shown due diligence in discovering the juror's disqualification.*fn11

Smith v. Georgia, 2 Ga. App. 574, 59 S. E. 311 (1907), involved a conviction for arson. A motion for new trial was denied, the judgment was affirmed on appeal, and five months later the defendant filed an extraordinary motion for new trial on the ground that one of the jurors was related to the deceased wife of the prosecutor within the ninth degree, and several of the prosecutor's children continued the kinship by affinity. The trial court denied the motion, but the appellate court granted a new trial. It said:

". . . There is no higher purpose to be subserved in the administration of the criminal law than that every defendant shall be accorded a trial by jury, and jury trial is a mockery unless the jury be not only impartial but also beyond just suspicion of partiality. . . ." (2 Ga. App., at 578, 59 S. E., at 313.)

In answer to the State's contention that the defendant and his attorney had not shown due diligence in discovering the prohibited relationship, the court said that the trial judge had inquired into the question of relationship when the jury was impaneled, and then the court added this quotation from a Georgia Supreme Court opinion:

". . . 'Parties are not required to make searching investigation out of court to determine whether the jurors who are summoned are disqualified in their cases. Not only is such a duty not placed by the

[ 349 U.S. Page 386]

     law upon parties and their counsel, but the contrary practice is to be encouraged, for obvious reasons.'" (2 Ga. App., at 582, 59 S. E., at 315.)

In Crawley v. Georgia, 151 Ga. 818, 108 S. E. 238 (1921), four defendants were convicted of murder. Two were sentenced to death and two to life imprisonment. A motion for new trial was overruled, the judgment was affirmed on appeal, a motion for rehearing was denied, and a week later the defendants filed an extraordinary motion for new trial, which the trial court overruled. The Georgia Supreme Court reversed. The extraordinary motion showed that the wife of one juror was within the ninth degree of relationship to the wife of the murdered man. A new trial was granted even though the State submitted an affidavit by the juror that he did not know of the relationship at the time of the trial and therefore could not have been prejudiced.*fn12

In Doyal v. Georgia, 73 Ga. 72 (1884), the defendant was convicted of murder. His motion for new trial was denied, and the judgment was affirmed on appeal. He filed an extraordinary motion for new trial on the ground that five witnesses were ready to testify that one of the jurors had said in effect before the trial that the defendant ought to be hung and that the juror would see to it if he got on the jury. The defendant and his attorney filed affidavits to the effect that they had been ignorant of the facts at the time of trial. Despite affidavits submitted

[ 349 U.S. Page 387]

     by the State showing the availability of three of the five witnesses at the time of trial, the Georgia Supreme Court granted a new trial.*fn13

There are other cases of like tenor.*fn14

All these cases (barring Harris v. Georgia, n. 14) involved objections to individual jurors, as contrasted with the objection to the whole panel in this case. But the two situations cannot be distinguished on this ground.

[ 349 U.S. Page 388]

     Georgia has a rule, as the State Supreme Court noted in this case, that an objection to the whole panel must be made by way of a challenge to the array at the time the panel is put upon the defendant. Cornelious v. Georgia, 193 Ga. 25, 17 S. E. 2d 156 (1941); Wilcoxon v. Aldredge, 192 Ga. 634, 15 S. E. 2d 873 (1941); Cumming v. Georgia, 155 Ga. 346, 117 S. E. 378 (1923); Lumpkin v. Georgia, 152 Ga. 229, 109 S. E. 664 (1921).*fn15 But none of these cases declare that an extraordinary motion is not available in a proper case for granting a new trial when the objection is to the panel. On the contrary, several factors indicate that the trial judge and the appellate court have the same degree of discretion in the ...

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