US SUPREME COURT DECISIONS

Petitioner is a Negro who was convicted by an all-white jury in a Georgia state court for murdering a white man and was sentenced to death. After his conviction had been affirmed by the State Supreme Court, he filed in the trial court an extraordinary motion for a new trial, claiming for the first time that his conviction was invalid because of unconstitutional discrimination against Negroes in the selection of the jury panel from which the jury which convicted him had been drawn. He alleged that the method of selecting the jury panel was the same as that which was condemned in Avery v. Georgia, 345 U. S. 559, but dismissal of his motion was sustained by the State Supreme Court on the ground that, under Georgia law, objection to a jury panel can be made only at the time when the panel is "put upon" the defendant and before trial begins, and that petitioner had not shown sufficient excuse for his failure to object at that time. In oral argument before this Court, the State conceded that, as a matter of substantive law, petitioner had been deprived of his constitutional rights.

Held:

1. Where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, this Court is not precluded from assuming jurisdiction and deciding whether the state court's action in the particular circumstances is, in effect, an avoidance of the federal right. P. 349 U. S. 383.

2. A review of the Georgia decisions leads to the conclusion that the trial court and the State Supreme Court in this case declined to grant petitioner's motion, though possessed of the power to do so under state law. Pp. 349 U. S. 383-389.

3. In view of the extraordinary facts of this case, orderly procedure requires a remand to the State Supreme Court for reconsideration, and it is so remanded. Pp. 349 U. S. 389-391.

210 Ga. 665, 82 S.E.2d 217, remanded for reconsideration. chanrobles.com-red

Page 349 U. S. 376