Whitus v. Georgia

LOCATION: Criminal District Court #4

DECIDED BY: Warren Court (1965-1967)

CITATION: 385 US 545 (1967)
ARGUED: Dec 07, 1966
DECIDED: Jan 23, 1967

Facts of the case


Media for Whitus v. Georgia

Audio Transcription for Oral Argument - December 07, 1966 in Whitus v. Georgia

Earl Warren:

Number 253, Phil Whitus and Leon Davis, petitioners versus Georgia and number 650, the same parties.

Mr. Morgan.

Charles Morgan, Jr.:

Mr. Chief Justice and may it please the Court.

This case involves two Negro criminal defendants from the State of Georgia, Phil Whitus and Leon Davis who in December 19, 1959 were accused of the crime of murder of a White man in Mitchell County, Georgia, a small South Georgia county.

This case has been pending in one court or another since that time.

After an initial conviction in which the trial -- which they questioned systematic exclusion of Negroes from the juries, was not raised.

The case was appealed to the Supreme Court of the State of Georgia and I recall it came here by certiorari, certiorari denied and then a petition for a writ of writ of habeas corpus filed in the United States District Court in the Southern District of Georgia, denied there.

It then went to the Fifth Circuit Court of Appeals, denied there on the grounds of non-exhaustion of remedies.

That judgment is vacated by this Court and the case went back down to the Court of Appeals.

The District Court again dismissed the petition for habeas corpus back to the Court of Appeals and then it was reversed and the jury box in Mitchell County, Georgia then was condemned, as being racially exclusive.

Now, in that opinion by the United States Court of Appeals for the Fifth Circuit in which certiorari was denied by this Court, three years ago to this day, the State of Georgia was given eight months after the final judgment of that court in which to try and indict and try -- retry these petitioners before some constitutionally composed jury or tribunal in some place in the State of Georgia.

The Fifth Circuit said that the state had eight months in which to do that and that any questions of course would come by regular appeal through the state process.

We are now here alleging that the law of the State of Georgia which requires the selection of jurors from tax digest, which are by statute racially segregated, renders the jury system under which these petitioners were tried invalid and unconstitutional and we secondly allege that there was in fact systematic exclusion of Negroes from the grand and petit jury in Mitchell County, Georgia.

Now under the facts of this case in Mitchell County, Georgia, we had initially and that the county population by the way, the population of, those who are eligible for jury duty, male citizens over 21 years of age is the figure we were taking here, even though females are eligible to serve in Georgia, very few do and I think it’s a proper statistics because the figures are greater for the total Negro population of the county than they are for Negro males over age 21.

The percentage is 42% of the population of Mitchell County, Georgia and that is I think the most conservative racial figure that could be used here.

Potter Stewart:

But in order to be qualified for jury service you have to be a taxpayer?

Charles Morgan, Jr.:

Yes, your name comes from -- all jurors come from the tax digest and of necessity, you would have to be a taxpayer.

Potter Stewart:

And the figures you gave us include the tax paying and the taxpayer?

Charles Morgan, Jr.:

No sir, they do not.

Those figures --

Potter Stewart:

Well then that would be the more accurate statistic?

Charles Morgan, Jr.:

That would be a more accurate statistic of the total number eligible.

That is not disclosed by the record in this case, that figure is not.

Now, according to the evidence in this case, prior to the indictment of these two petitioners, no Negro had ever served on a grand jury in Mitchell County, Georgia.

One Negro did serve on this grand jury.

On the trial jury, called at the same time as the grand jury was called, of 90 who were summoned, there were three of the April term report who were Negroes.

The petitioner was not tried then.

He was not tried into the fall following.

At that time, 90 jurors were summoned, seven were Negroes.

I think under the rulings of this case -- court including the Swain case a prima facie case was made out on the actual question of systematic exclusion.