White v. Georgia, 72-1736

• Decision Date: 15 October 1973
• Docket Number: No. 72-1736,72-1736
• Citation: 414 U.S. 886,94 S.Ct. 222,38 L.Ed.2d 134
• Parties: Harry WHITE v. State of GEORGIA
• Court: U.S. Supreme Court

414 U.S. 886

94 S.Ct. 222

38 L.Ed.2d 134

Harry WHITE

v State of GEORGIA.

No. 72-1736.

Supreme Court of the United States

October 15, 1973

Rehearing Denied Dec. 3, 1973.

See 414 U.S. 1086, 94 S.Ct. 607.

The appeal is dismissed for want of a substantial federal question.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur, dissenting.

On the basis of Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), I concur in the dismissal of appellant's facial attack on Georgia's jury selection statutes. However, I would treat the jurisdiction statement as a petition for certiorari in respect of the second question presented,^* see 28 U.S.C. § 2103 (1964 ed.); Mishkin v. New York, 383 U.S. 502, 512, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), and to that extent set the case for oral argument.

Appellant alleges that the application by the jury commissioners of Coweta County of the Georgia jury selection statutes violated the Fourteenth Amendment in that such application resulted in blacks, women, and young adults age 18 30 being underrepresented on the venire from which his grand and petit juries were impaneled. The relevant Georgia statutes, Ga.Code Ann. §§ 59 106, 59 201, require the county board of jury commissioners, at least biennially, to compile a jury list of 'intelligent and upright citizens,' who represent a fair cross section of the county, to serve as petit jurors. From this list, the commissioners are required to select the 'most experienced, intelligent, and upright citizens,' not exceeding two fifths of the whole number, to serve as grand jurors.

Appellant, a white male 24 years of age, challenged the array of the grand and petit juries which indicted and convicted him, on the ground that the jury list comprising the venire was compiled in an arbitrary and discriminatory manner. The jury commissioners testified that a juror was not selected for either grand or petit jury service unless the juror was known personally by at least one commissioner. Appellant argues that this selection procedure permits the jury commissioners to know the race, sex, and approximate age of every juror before the venire is selected, and that as a consequence, a clear and ready opportunity for discrimination inheres in the selection procedure. Appellant buttresses this conclusion with uncontroverted statistical evidence that the population of Coweta County is composed of 28.3% eligible blacks, 53.3% eligible women, and 26.2% eligible young adults aged 18 30. Yet, the 2,138 names placed on the petit jury list included only 10.85% blacks, 16.23% women, and 3.09% young adults. Of the 400 persons found to be the 'most experienced' and placed on the grand jury list, only 14.25% were blacks, 4.5% were women, and 1.25% were young adults.

Nevertheless, the Georgia Supreme Court held that:

'With respect to the contention of de facto dis- crimination by the jury commissioners in the selection of individuals to be placed on the jury list, it is sufficient to say that the appellant did not introduced evidence demanding the conclusion of de facto discrimination.' White v. The State, 230 Ga. 327, 331, 196 S.E.2d 849, 853 (1973).

Although a defendant in a criminal case does not have a constitutional right to grand and petit jury arrays that represent the community in exact, mathematical proportions, the selection procedure employed must provide 'a fair possibility for obtaining a representative cross section of the community.' Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). '[A] State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States.' Peters v. Kiff, 407 U.S. 493, 502, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). (Opinion of Marshall, J.)

Appellant's challenge to the racial composition of the venire appears to me to require application of the principles that guided our judgment in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). In Alexander petitioner introduced statistical evidence that blacks comprised 21.06% of the population, but only 6.75% of the grand jury panels, demonstrating an underrepresentation of 67.9%. In addition, petitioner introduced evidence that the jury commissioners used information cards which designated the race of each potential juror. We held that petitioner's statistical evidence establishing that blacks were underrepresented, together with the evidence that the selection procedures...