Reece v. State of Georgia, No. 112

• Court: United States Supreme Court
• Writing for the Court: CLARK
• Citation: 350 U.S. 85,76 S.Ct. 167,100 L.Ed. 77
• Parties: Amos REECE, Petitioner, v. STATE OF GEORGIA
• Docket Number: No. 112
• Decision Date: 05 December 1955

350 U.S. 85 76 S.Ct. 167 100 L.Ed. 77 Amos REECE, Petitioner,

v.

STATE OF GEORGIA.

No. 112. Argued and Submitted Nov. 9, 1955. Decided Dec. 5, 1955. Rehearing Denied Jan. 9, 1956.

See 350 U.S. 943, 76 S.Ct. 297.

Mr. Daniel Duke, Atlanta, Ga., for petitioner.

Messrs. Eugene Cook, Robert H. Hall, E. Freeman Leverett, Atlanta, Ga., for respondent.

Page 86

Mr. Justice CLARK delivered the opinion of the Court.

Petitioner, Amos Reece, a Negro, was convicted of the rape of a white woman in Cobb County, Georgia. He contends here that Georgia's rule of practice requiring him to challenge the composition of the grand jury before indictment violates the Due Process Clause of the Fourteenth Amendment. The Georgia Supreme Court affirmed his conviction, 211 Ga. 339, 85 S.E.2d 773, and we granted certiorari because of the important issues involved, 349 U.S. 944, 75 S.Ct. 877.

Reece was arrested on October 20, 1953, and was held in the county jail until his indictment three days later. On October 24, the day after his indictment, two local attorneys were appointed by the trial court to defend him. On October 30, before his arraignment, Reece moved to quash the indictment on the ground that Negroes had been systematically excluded from service on the grand jury. This motion was overruled after a hearing. On the same day, petitioner was tried, convicted and sentenced to be electrocuted. The Supreme Court of Georgia held that the motion to quash was properly denied because, by Georgia practice, objections to a grand jury must be made before the indictment is returned, 210 Ga. 578, 82 S.E.2d 10, but reversed the case on another ground, not pertinent here, and remanded it for a new trial.

Before his second trial Reece filed a special plea in abatement which alleged systematic exclusion of Negroes from the jury commission, the grand jury which indicted him and the petit jury about to be put upon him. This plea also stated that petitioner had neither knowledge of the grand jury nor the benefit of counsel before his indictment. The State's demurrer to this plea was sustained, and petitioner was again tried, convicted and sentenced to be electrocuted. It is this judgment which is here for review.

Page 87

At the outset the State contends that the case is not properly before us because petitioner did not apply for a writ of certiorari within 90 days after the first judgment of the Supreme Court of Georgia. This contention is clearly without substance. A timely application for certiorari to review the second judgment was made, and the case is properly here. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. We have jurisdiction to consider all of the substantial federal questions determined in the earlier stages of the litigation, Urie v. Thompson, 337 U.S. 163, 172—173, 69 S.Ct. 1018, 1025—1026, 93 L.Ed. 1282, and our right to re-examine such questions is not affected by a ruling that the first decision of the state court became the law of the case, Davis v. O'Hara, 266 U.S. 314, 45 S.Ct. 104, 105, 69 L.Ed. 303.

This Court over the past 50 years has adhered to the view that valid grand jury selection is a constitutionally protected right. The indictment of a defendant by a grand-jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment, United States v. Gale, 109 U.S. 65, 72, 3 S.Ct. 1, 6, 27 L.Ed. 857. Of course, if such a motion is controverted it must be supported by evidence, Patton v. State of Mississippi, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct....