389 U.S. 24
88 S.Ct. 4
19 L.Ed.2d 25
Alexander David JONES
No. 174, Misc.
Oct. 16, 1967.
Wilbur D. Owens, Jr., for petitioner.
Arthur K. Bolton, Atty. Gen. of Georgia, G. Ernest Tidwell, Executive Asst. Atty. Gen., and Marion O. Gordon, Asst. Atty. Gen., for respondent.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
Petitioner appealed his conviction for murder to the Georgia Supreme Court where he sought reversal on the ground, among others, that the evidence relevant to his claim of systematic exclusion of Negroes from the grand and petit juries drawn in the county established a prima facie case of the denial of equal protection within our decision in Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.* The Georgia Supreme Court affirmed the conviction stating that Whitus was distinguishable because 'public officers are presumed to have discharged their sworn official duties. * * * Under the testimony in this case we cannot assume that the jury commissioners did not eliminate prospective jurors on the basis of their competency to serve, rather than because of racial discrimination.' 223 Ga. 157, 162, 154 S.E.2d 228, 232.
We hold that the burden upon the State to explain 'the disparity between the percentage of Negroes on the tax digest and those on the venires,' Whitus, supra, 385 U.S. at 552, 87 S.Ct. at 647, was not met by the Georgia Supreme Court's reliance on the stated presumptions. See Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Williams v. State of Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161; Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. We therefore reverse the judgment of the Georgia Supreme Court and remand for further proceedings not inconsistent with our opinion.
It is so ordered.
Reversed and remanded.
The record supports the following comparison of the salient facts in Whitus and in petitioner's case:
Whitus Petitioner's case
Over 21 population 42.6% Negro men 30.7% Negro
Jury Commissioners White (apparently) White
Source of juror Tax Digests separated 3 Tax Digests, two of
names and identified as to race which separated and
identified as to race
Taxpayers 27.1% Negro 197% Negro
Negro jurors 9.1% grand jury venire 5.0% of jury list and box
7.8% petit jury venire
(1 Negro was on the
grand jury which
by State None None