Whitus et al. v. Georgia
Decided on Jan. 23, 1967, 385 US 545


A. Issues Discussed: Racial discrimination, jury selection

B. Legal Question Presented:

Does the Georgia system of jury selection, for grand and petit jury, discriminates on the basis of race?

A. Background:

After petitioners, who are Negroes, were convicted of murder in the Georgia courts, they filed a writ of habeas corpus in the federal courts, attacking the composition of the grand and petit juries which indicted and convicted them. The District Court dismissed the writ and the Court of Appeals affirmed. This Court vacated that judgment and remanded to the District Court for a hearing on the claim of discrimination

On remand the District Court dismissed the petition on the ground that the claim had been waived, but the Court of Appeals reversed, holding that Negroes had been systematically excluded from both grand and petit juries, since none had ever served on juries within the memory of witnesses, although 45% of the population of the county was Negro. The Superior Court of Mitchell County then directed the jury commissioners to revise the jury list. 

Georgia law requires the commissioners to "select from the books of the tax receiver upright and intelligent citizens to serve as jurors." The 1964 tax digest, and those prior thereto, were required by Georgia law to be made up from segregated tax returns and the names of Negroes were designated by having a "(c)" placed opposite their names. The State admits that the revised jury list was made up by reference to the old jury list, which had been condemned, and the 1964 tax digest. Three commissioners testified that they were unaware of the letter "(c)" appearing after Negroes' names in the 1964 digest, that they did not include or exclude anyone on the revised list because of color, that they placed persons on the list who were known to them, and that the revised list had no designation of race on it. 

While 27.1% of the taxpayers in the county are Negroes, and 42% of the males over 21 are Negroes, only 3 of the 33 prospective grand jurors were Negroes, of whom one served on the 19-member grand jury, and only 7 of the 90 persons used to select a petit jury were Negroes, and none was accepted for the petit jury. 

On certiorari the Supreme Court found that the jury selection was discriminatory and reversed the judgments of the Supreme Court of Georgia.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Charles Morgan, Jr., and P. Walter Jones argued the cause and filed briefs for petitioners in both cases. Fred B. Hand, Jr., Solicitor General of Georgia, and E. Freeman Leverett, Deputy Assistant Attorney General, argued the cause for respondent in both cases. With them on the brief was Arthur K. Bolton, Attorney General.

"For over fourscore years it has been federal statutory law, 18 Stat. 336 (1875), 18 U.S.C. 243, and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race...

Under [Georgia's] system the opportunity for discrimination was present and we cannot say on this record that it was not resorted to by the commissioners. Indeed, the disparity between the percentage of Negroes on the tax digest (27.1%) and that of the grand jury venire (9.1%) and the petit jury venire (7.8%) strongly points to this conclusion. Although the system of selection used here had been specifically condemned by the Court of Appeals, the State offered no testimony as to why it was continued on retrial. The State offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of 'upright and intelligent' Negroes as the statutory qualification required. In any event the State failed to offer any testimony indicating that the 27.1% of Negroes on the tax digest were not fully qualified. The State, therefore, failed to meet the burden of rebutting the petitioners' prima facie case."

The Supreme Court reversed the judgments of the Supreme Court of Georgia.

Justice Vote: 9 Pro vs. 0 Con 
  • Clark, T. Pro (Wrote unanimous opinion)
  • Douglas, W.  Pro
  • Stewart, P.  Pro
  • Brennan, W.  Pro
  • Fortas, A.  Pro
  • Warren, E.  Pro
  • Harlan, J.  Pro
  • Black, H.  Pro
  • White, B.  Pro

    The ACLU, as counsel of record, urged reversal of the judgments of the Supreme Court of Georgia; the US Supreme Court reversed  the lower court's ruling in a 9-0 vote, giving the ACLU an apparent win.