Greene v. State, A11A1067, November 17, 2011: Harry Greene was found guilty of DUI less safe and per se in Henry County after a jury trial. He appealed because the jury pool he was presented was not a fair cross-section of the community as African Americans were under-represented and on the failure of the Court to Charge the Jury on Circumstantial evidence.
The Clerk of the Henry County Jury Commission testified that the commission compiles a master jury list every two years, composed of county residents with a drivers’ license, a state-issued identification card, or who are registered to vote. The commission determines how many jurors the county courts will need in the next two years. The Henry County Jury Commission draws that number of qualified jurors from the master list, using a formula so that the percentages of persons segregated by race, age, and gender match the percentages of the 2000 census. In this case, the percentage of African-Americans in the master list was 36.9 percent. The commission reduced the percentage of African-Americans on the jury lists to 13.9 percent to match the percentage of African Americans in the 2000 census. The commission allegedly had not yet received the 2010 census.
The Georgia Court of appeals held to make a prima facie claim of a fair cross-section violation in the selection of a jury pool, a defendant must show
(1) that the group alleged to be excluded is a “distinctive” group in the community;
(2) that the representation of this group [on the trial jury list] is not fair and reasonable about the number of such persons in the community; and
(3) that this under-representation is due to systematic exclusion of the group in the jury selection process.
A prima facie showing of a fair cross-section violation can be rebutted if the State can demonstrate that “attainment of a fair cross-section [is] incompatible with significant state interest. The Court of Appeals held that because the Supreme Court in a Unified Appeal Procedure utilized in Death Penalty cases found that using the Decennial Census is compatible with significant state interest.
Finally, the Georgia Court of Appeals found that Henry County Trial Court erred by not giving the requested charge on circumstantial evidence because field tests are circumstantial. But because the DUI less safe was merged into the DUI per se the issue was moot.