BURCH v. LOUISIANA
Burch was found guilty by a nonunanimous six-member jury of showing obscene films. The court imposed a suspended prison sentence of two consecutive seven- month terms and fined him $1,000.
Does a conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense violate the accused's right to a trial by jury as protected by the Sixth and Fourteenth Amendments?
Legal provision: Right to Trial By Jury
The Court found that convictions by the nonunanimous six-member jury violated the Constitution. Tracing the development of the Court's considerations of this issue, Justice Rehnquist indicated that Burch's case sat at the "intersection of our decisions concerning jury size and unanimity." Rehnquist relied on the Court's holding in Ballew v. Georgia (1978) and the practices in several of the states to find against convictions by nonunanimous juries of six members. Only two of the states that used six-member juries in trials for petty offenses allowed verdicts to be less than unanimous. This "near uniform judgment of the Nation" of the inappropriateness of this jury arrangement, argued Rehnquist, provided the Court with a "useful guide" in determining constitutionally allowable jury practices.
Argument of Jack Peebles
Chief Justice Warren E. Burger: We'll hear argument next in Burch against Louisiana.
Mr. Peebles, I think you may proceed when you're ready.
Mr. Peebles: Mr. Chief Justice and may it please the Court.
This case is hereby way of certiorari to the Supreme Court for the State of Louisiana.
The question involved is whether the Louisiana constitutional provision for trial by a jury of six persons in certain criminal cases with five required to deliver a verdict meets our offense, the Sixth and Fourteenth Amendments to the federal constitution.
In the Louisiana Constitution of 1974 which is now in service, we have three categories for our criminal juries.
In capital cases, 12 out of 12 are required for conviction.
In cases requiring hard labor, 10 out of 12 were required for conviction and in lesser felony such as the one in this case where the judge may impose hard labor but that does not necessarily have to.
You have a jury provision of six persons, five of whom must concur in any verdict.
Justice Potter Stewart: Including a not guilty verdict, is that correct?
Mr. Peebles: Yes, sir.
That is correct.
Justice Potter Stewart: One of the six could be for the finding of guilty but of the other five are for a finding of not guilty, that's the verdict?
Mr. Peebles: That's correct Your Honor.
And in this case the defendant, Daniel Burch and Russel Incorporated, the corporation involved, were each convicted on two counts of obscenity under the state of sanity statute.
Specifically they were alleged to have shown obscene movies in a coin-operated machine in downtown New Orleans.
There were two charges, two convictions and Burch was convicted and sentenced to two seven month terms of imprisonment which were suspended.
He was fined a thousand dollars.
The corporation received a six hundred dollar fine on each count.
Justice John Paul Stevens: Are you making any point what the corporation did?
Mr. Peebles: Yes, Your Honor.
We are submitting that their case should be considered along with Burch's.
Justice John Paul Stevens: Why?
Mr. Peebles: The only rationale we can present to the court as to why they -- their case should be considered is that they were tried under the same statute.
By way of analogy, we would submit the Duncan versus Louisiana shows an analogous situation.
There if the court will recall, this Court determined that for the first time that a defendant was entitled to a jury in a serious criminal case.
In Duncan's case, the maximum sentence could've been imposed under the statute was two years.
In fact, Duncan was only sentenced to 60 days and had argument the --
Justice John Paul Stevens: There is a vote, six to nothing.
Mr. Peebles: Yes Your Honor.
Justice John Paul Stevens: Well on a corporation, that is --
Mr. Peebles: That's correct.
And I'm saying it by analogy as in Duncan, the case of Duncan there the State of Louisiana argued that since Duncan in fact received the sentence which was not in legal terminology of serious sentence, he should not be permitted to argue his case.
Nonetheless the court did reach the merits on that case.
That's the only analogy that I can think of which would support this Court's entertaining the argument of Russel Incorporated here.
Justice William H. Rehnquist: Under your theory then any one who is convicted in Louisiana under this particular Section of the constitution even though by a unanimous six men jury or six person jury would be entitled to be free?
Mr. Peebles: I -- I don't know that the decision would have to be retroactive but I think they could've raised that point under that argument, yes Your Honor.
However there's no question but that Burch who was convicted by a five to one vote is properly here whether or not Russel should be considered by this Court.
Our argument is essentially that the combination of the non-unanimity and the reduced panel -- offense, the Sixth and Fourteenth Amendments, this Court has said in Williams versus Florida that six out of six is constitutional, to that -- 1970 and in Ballew versus Georgia you said the five out five, offense, the Sixth and Fourteenth Amendments.
Now here we have a case where you have five out of six and the court must decide whether that model offense, the Sixth and Fourteenth Amendments.
I think it goes without saying in many of the arguments that we might use would apply to the Ballew decision, five out of five and many of the arguments that the state might make might apply with equal vigor to the Williams versus Florida decision regarding six out of six.
Justice Thurgood Marshall: Well, what about six out of 12?
Mr. Peebles: I don't know of any case in which the court has decided that issue Your Honor.
Justice Thurgood Marshall: Well, I'm talking about this very case.
Mr. Peebles: In this case Your Honor the -- its constitution --
Justice Thurgood Marshall: Well, if you'd gotten six out of 12, you'd get same as if you'd got six out of six?
Mr. Peebles: You still have six people voting to convict that are to acquit, that's correct Your Honor.
But that's not required by the statute --
Justice Thurgood Marshall: Well, you -- well I'm trying to --
Mr. Peebles: Yes.
Justice Thurgood Marshall: -- find out, we're arguing about figures or unanimity.
Mr. Peebles: Well, here you have both aspects, the non-unanimous character of the Louisiana statute and the fact that only six are required to constitute the jury with only five required
Justice Thurgood Marshall: Do you think that that's still open, the six-man jury for -- is still open?
Mr. Peebles: No, no, I -- if -- that was foreclosed by Williams versus Florida.
Justice Thurgood Marshall: Yes.
Mr. Peebles: So this Court has said that the six-man jury with a unanimous verdict --
Justice Thurgood Marshall: That's okay.
Mr. Peebles: -- is constitutional, yes sir.
Justice Thurgood Marshall: So you're not arguing that?
Mr. Peebles: No, sir.
In Williams however the court did indicate that it preferred the unanimity factor and in the court statement at that time in the opinion you said that you did not feel that there were any major reasons why the six-man jury would not be constitutional as contrasted with the 12 man jury particularly if their -- the jury was required to come back with a unanimous vote.
But of course we do not have a unanimous vote here.
So, the questions arises if you don't have a unanimous vote does that then change the character of this body which we call the jury so that the essential features of the jury and its classical institutional form are inhibited.
We submit that it does.
Chief Justice Warren E. Burger: When you say classical form, traditional form what do you mean by that?
Mr. Peebles: The --
Chief Justice Warren E. Burger: 12?
Mr. Peebles: That -- I'm sorry Your Honor.
Chief Justice Warren E. Burger: Do you mean 12?
Mr. Peebles: No, Your Honor.
I was referring to the purposes for the jury that the court has perviously indicated requiring adequate deliberation, a cross-section of the community, that sort of thing.
I think the question that this Court must decide is whether the non-unanimous six-man in jury adequately protects those features.
Justice Byron R. White: Well, I have six -- the six-man jury is all right in terms of just the cross-section, there was the six men of jury here.
Mr. Peebles: There was Your Honor.
And so that --
Justice Byron R. White: So there was jury and in terms of deliberation would you say that if there is a split vote indicates more deliberation or less?
Mr. Peebles: In the case, less deliberation Your Honor.
Justice Byron R. White: Why?
Mr. Peebles: Because of the split vote Well, I the believed that some of the sociological studies indicated in the Ballew decision, indicate that if there is a split vote so that only a majority is required or a percentage with not a unanimous vote then there is less deliberation insofar as time is concerned then there ordinarily would be.
Chief Justice Warren E. Burger: I suppose --
Justice Byron R. White: Well, at least but the people of the five here, have at least had to face up to dissenting vote, haven't they?
Chief Justice Warren E. Burger: Yes, sir.
Justice Potter Stewart: Well, five out of just -- could say, lets say it was Negro defendant and one of the six jurors were a Negro.
Mr. Peebles: Yes.
Justice Potter Stewart: -- five others could just say will you go there and play solitary in the quarter and we will decide this case.
Mr. Peebles: That's our argument Your Honor.
We submit that that is correct.
Chief Justice Warren E. Burger: But you do not suggest that's present in this case to you.
Mr. Peebles: Not in -- we do not know what happened in the jury room in this case Your Honor.
Chief Justice Warren E. Burger: So you're not suggesting any hypothesis about that processes about that.
Mr. Peebles: We are – we're not suggesting any hypotheses.
Chief Justice Warren E. Burger: No, on that point that you were discussing with Mr. Justice White, when I was in law school it was common for the lecturer to say that divided court opinion carries more weight than a unanimous opinion of a multi judge court whether it was three under the part of appeals or nine here because that showed that the contest -- the issue was contested right -- to the end of the line.
How do you square that with the sociological studies I suppose -- that each of them has about the same value perhaps.
Mr. Peebles: Well --
Chief Justice Warren E. Burger: This was the wisdom of lawyers and law teachers until -- at least a few years ago.
Mr. Peebles: Well, of course Your Honor, we have no way of knowing exactly what goes on in a jury room but --
Chief Justice Warren E. Burger: You are and now what goes on in the conference room of the Court of Appeals or a State Supreme Court.
Mr. Peebles: Yes, sir.
But it would seem logical to me that a jury which requires only five out of six would not have a vigorous debate that a jury would have -- if all six members were required to bring back a verdict.
I think some -- now with the sociological studies have indicated that in cases where a non-unanimous jury was the one in question, the time that they stayed out was less.
Chief Justice Warren E. Burger: Those are the same sociological studies that said a jury of less than 12 is bad because it reduced the chances of an acquittal.
Mr. Peebles: Yes, sir.
Chief Justice Warren E. Burger: And the by the same token, a jury of 24, 36 or 48 would cut the other way, wouldn't it?
Mr. Peebles: Those were the same studies Your Honor.
Our position here is that you have said in Ballew that five men are not adequate to represent a cross-section of the community and to give adequate deliberation in a jury room.
Now our suggestion --
Chief Justice Warren E. Burger: Now, -- if they're all alone -- if they don't have a --
Mr. Peebles: Yes, if all along -- that's correct.
Chief Justice Warren E. Burger: -- number of six there?
Mr. Peebles: Yes, sir.
And our position here is that I'm merely adding another individual to that jury who does not -- whose vote is not required in order to bring back a verdict.
You have not essentially change the nature of that jury.
It still remains essentially a Ballew jury.
And in some respect it's even worst.
One of the points made by Mr. Justice Blackmun in the Ballew decision was that the smaller jury resulted in less hung jury which ordinarily inures to the benefit of the accused.
Now of course in our situation where you have five out of six as contrasted with five out of five, you're likely to have even fewer hung juries.
Therefore it's even more to the detriment of the defendant.
Justice Thurgood Marshall: Mr. Peebles, I have a lot of problem with this cross-section, the jury, how many would you need in New York City?
Mr. Peebles: How many would we need in order to have another -- the cross-section?
Justice Thurgood Marshall: So, (Voice Overlap) the cross-section of Manhattan? Above a thousand, when it should?
Mr. Peebles: Well, it would be -- I would be the perfect, how do you -- I suppose sir, this Court has said that six is adequate --
Justice Thurgood Marshall: Yes.
Mr. Peebles: -- in Williams versus Florida.
Justice Thurgood Marshall: If I'm trying to keep it not -- rearguing that one is not very -- what he did.
Mr. Peebles: The court has said that and we don't call with opposition.
The court -- the question is, is that the absolute minimum required so that no change can be made which would reduce the potential for deliberation and cross-section argument.
Justice Thurgood Marshall: Well, your argument is that if you -- by six, you mean six unanimous?
Mr. Peebles: Yes.
That's correct sir.
Justice Thurgood Marshall: That's your point?
Mr. Peebles: That is right.
Justice Potter Stewart: Because it's all that the court can do is deal with the system.
With the rule you can't deal with individual jurors --
Mr. Peebles: Yes, sir.
Justice Potter Stewart: I -- even with the 12 member unanimous jury you might have 12 peas in the pot.
Mr. Peebles: That's correct.
Justice Potter Stewart: Now, any particular jury didn't know cross-section at all.
Mr. Peebles: That's correct sir.
Justice Potter Stewart: But one deals with the system.
Mr. Peebles: That's correct.
In reducing the jury to six, you have really gotten we suggest to the very minimum that you could have by way of cross-section as -- it was pointed out in the Ballew decision if you have a segment of 10% of the community which represents a particular view point and you only have a six-man jury then statistically, on the average more than half of the juries you select will not have any representatives of that ten percent view point.
Now, the court has held that six out of six is constitutional.
But as you add to that, the factor that not all six votes are required in order to bring back a verdict.
We submit that if then there is any legitimacy to the argument that five jurors may be less than fully impressed with the argument of that six juror then you have gone below the line of that which is constitutional.
Chief Justice Warren E. Burger: Do you relate this to the burden of proof in criminal cases as distinguished from the burden of proof in civil cases?
Mr. Peebles: I would Your Honor, I think that we (Voice Overlap) --
Chief Justice Warren E. Burger: Most of the states permit a five or six verdict in civil cases, do they are not after -- sometimes after a certain lapse of time?
Mr. Peebles: Well, some of the -- I'm not familiar with any courts which do that, their -- maybe the case.
I'm -- I don't think there are any other courts which permit it in criminal cases other than Louisiana.
We would also suggest that there is not legitimate state interest which would validate their reducing the number of jurors required to convict to below six.
As the court has said in the Ballew decision, if such an interest did exist and of course there would be maybe argument or reason for permitting these five out of six model.
However, the only results here that might be of -- might inure to the benefit of the state would be the reduced time required for jury deliberations and the reduced number of hung juries.
Justice William H. Rehnquist: Well, isn't there some interest too on the part of the state in not taking people away from gainful employment in order to serve as jurors if they can get by with less?
Mr. Peebles: Well, I think that is a legitimate reason but if you're -- we are suggesting simply that that type of reason which I think is essentially the same as the argument I suggested that they would reduce a deliberation time, same kind of thing is simply counterbalanced by the fact that you are reducing the very nature of the jury.
Beyond that which people commonly conceive to be a jury is something less than a jury, we would suggest.
Justice John Paul Stevens: How is that state into a serve by removing a requirement of unanimity, I don't quite understand?
Mr. Peebles: Oh, it does not.
I have understood from Mr. Justice Rehnquist that he was speaking of the six-man jury.
He would not affect the situation because we still have to have six people there --
Justice John Paul Stevens: Yes, I know.
Mr. Peebles: -- no matter what and they have to be paid. Presumably, they would not hang as often and they would be out for a shortly -- shorter periods of time.
We suggest that these are simply not sufficient reasons for the state to -- the counterbalance the -- what we think of the grave problems that we will be presenting with this type of jury.
The statistics have shown that -- and is indicated in footnote 10 of Ballew that with the 12 man of jury you have a juries that hung if the 12 men are required to come back unanimously about five percent of the time.
If you reduce that same panel to six with a unanimous return you have about half of that number of juries that will hang.
Well now, if you still -- then go further and eliminate one of those jurors as a mandatory vote.
I would suggest that you have practically eliminated the hung jury in our system.
And given our values that we would rather see ten guilty men go free than convict one innocent man I would suggest that the hung jury has its place.
Justice William H. Rehnquist: Well, as a mathematical proposition, a hung jury can be a benefit to a defendant on a five to one basis just to sure -- four or two basis just to surely as it can be to the prosecution.
Mr. Peebles: That -- that is correct Your Honor.
In that regard we would call the court's attention to the fact that as Professor -- as I saw, I believed he was pointed out and this was quoted in the Ballew decision.
The average juror has a propensity to convict so that although that's mathematically correct it would not probably result that way.
Most juries that are hung or hung in favor -- most votes in favor of conviction but with one or two holding out for not guilty, I believe the statistics will show that.
Yes, Your Honor.
Justice John Paul Stevens: This is an unfair question and I hope it hasn't been asked when I was out of the room.
Supposed the Louisiana statute provided for a seven-man jury and the vote were six to one, do you think under the result in Ballew that that conviction would hold up constitutionally?
Mr. Peebles: That would be a closer question Your Honor.
I would suggest that it would not.
Quite frankly, if you ask my impression, my impression is that -- if you get any further away from the -- what has been considered the classical jury system, 12 out of 12.
You're reducing the protection below the constitutional minimum.
And I would say that anything that does not required a unanimous jury below six would not be constitution.
Justice John Paul Stevens: How about the 10 out of 12?
Mr. Peebles: Well, the court has held that is constitutional.
Justice John Paul Stevens: Yes.
Mr. Peebles: But you have more total numbers there of the jury.
If I may address myself to that point Your Honor, the studies have shown that when you have as many as 12 jurors and you have a minority of two or three, they're most -- more likely to maintain there minority view point in the course of deliberations.
Then you are if you have a very small jury of about six or perhaps only one as a minority view.
He's much more likely to be to -- as a result of the conformity pressures on him to give up his views.
So that he is entirely likely that although nine out of 12 is in Johnson versus Louisiana or ten out of 12 is in Apodaca versus Oregon.
Eleven out of 12?
Well, the court held that that's legitimate and that's constitutional.
But you have enough jurors there so that if you do have a minority of two or three they can still work together and hold out with this minority view point.
If you reduce that down to as low as six however, then -- and you only have one minority number, we submit that he is much more likely to give in and thus the panel loses.
Justice John Paul Stevens: Of course in Ballew many members of the court weren't very impressed with what they called the numerology of the studies.
Mr. Peebles: Yes Your Honor.
Justice John Paul Stevens: I suppose you're less impressed to hear.
Mr. Peebles: Well --
Justice John Paul Stevens: See, Ballew wasn't a court opinion.
Mr. Peebles: Yes.
Justice Potter Stewart: It's a court judgment.
Mr. Peebles: It was a court judgment, yes.
So there were number of opinions in that court and I recognize the fact that members of the court differ over the approach in Ballew.
I thought I should address myself to it because it certainly was there and as Your Honor have said, if you don't rely to some extent on the social studies then you come close to just using judicial hunch and if you're not going to rely on history as -- or at least if you conclude that history is not going to give us a final answer as to what this jury --
Justice John Paul Stevens: Mr. Peebles, I'm not being critical because as you know in -- what was written in Ballew case, I gave substantial weight to the studies.
Mr. Peebles: Yes, Your Honor.
Justice John Paul Stevens: But not everybody was in agreement.
Mr. Peebles: Yes, Your Honor.
We would help that the court would review the question of the history of the jury system which had held not to be controlling in the Williams decision and subsequently in Apodaca.
Amicus brief, the Amicus brief in this case as presented even further evidence with regard to the intent of the primers of the Sixth Amendment which the court may wish to consider.
I do not think that a review of that question is mandatory to a favorable decision for the petitioner Burch in this case.
But we would certainly have no objection to the court considering it.
If the court has no further questions, that will conclude my argument.
Chief Justice Warren E. Burger: Very well.
Mr. Peebles: Thank you.
Argument of Louise Korns
Chief Justice Warren E. Burger: Mrs. Korns.
Mr. Korns: Mr. Chief Justice and may it please the Court.
Of course, it's the State of Louisiana's position in this case that because this Court approved a six-man jury in Williams versus Florida in majority verdicts when a substantial number of the jurors agree in Apodaca cersus Oregon and Johnson versus Louisiana that a five out of six jury verdict is constitutionally unassailable.
Under all the reasons brought forward by this Court in Williams and Apodaca and Johnson that is --
Justice Potter Stewart: Are you -- your reasoning then, four out of seven would be unassailable too.
Mr. Korns: There we get to the slippery slope argument --
Justice Potter Stewart: You said that -- since we've approved a six member jury, then a fortiori we would have approved a seven member jury.
Mr. Korns: I don't --
Justice Potter Stewart: But if that's all of this, just the numbers then four out of seven would -- as I understand your position.
Mr. Korns: Well, our position Your Honor is anchored right on this case.
We have a six member jury and five of them brought back a verdict and that the defense in this case made no attempt.
I'd like to jump to an argument that was made during my predecessor's argument where it has appeared that the only - that the two horns of the dilemma were social studies on one side, judicial hunch on the other.
It's the State of Louisiana's position that there's a third position and it's the only valuable position that is actual court studies taken -- which take place not grabbing fifteen cases here or some but with all the computers and everything available today it would be not impossible and not all that difficult to actually put into the computer every majority verdict to case in Louisiana compared to a light number of cases and other unanimous jurisdictions.
This has never been done although this Court suggested in Johnson versus Louisiana that until such evidence was presented it was not going to set aside the judicial -- the will of the Louisiana legislature in its presumption that a majority verdict was perfectly constitutional.
Now, let -- I'd like to point out to Mr. Justice Blackmun, I think he'll be particularly interested in this and I was particularly interested in it because of his reliance on empirical data in Ballew.
And I point out my brief that the data is sort of divided not completely but in general that on the same actual life studies of these majority verdicts or smaller jury's judicial proceedings favor the actual or in place studies generally favor these smaller juries and these majority verdicts where the mock juries and deductive modelling ones generally tend to disfavor them.
I'd like to point out that coming right out right now are articles by Professor Bernard Grofman, Associate Professor of Social Scientist at the University of California, Irvine.
He has brought one out in 19 -- at the end of last year the case for statistic for majority verdict, he's bringing more now right now.
By the way I -- just put in parenthesis, he's being funded in this by the National Science Foundation, its Social Sciences and Law Program.
He's been funded in this.
He's brought out the case statistical verdicts -- I mean, from majority for majority verdicts, the statistical case of majority verdicts and two other articles which he has sent to this Court barely.
But anyway, the State of Louisiana does not want the court to rely on this but just nearly points out that even the -- that this statistical data professes are sharply divided.
They'll -- Professor Stewart Niegel will tell you by all kind of formulas that this long and Xs and parenthesis that the chances of convicting an innocent person increase as you get five out of six whereas Professor Bernard Grofman will tell you by these other formulas, equally lined and complicated that his position that he urges in these articles and it's surprising anyway because it's counter-intuitive is that a six member majority verdict jury is more likely to protect the innocent than a 12 member unanimous verdict jury.
Now, I'm not telling this Court this because I urge them to rely on this.
I'm just telling them this to show them that the disarray that exist among this theoretical thinkers on the subject and our position is, if the National Science Foundation can fund a statistical research program like this, why can't they fund a naturally in place study of what actually happens in Louisiana under the majority verdict system that'll go on for maybe three or four years and collect actual hard figures.
So that we'll no longer be speculating about what happens but we'll see what happens but --
Justice Harry A. Blackmun: Mrs. Korns, do you -- are you saying, I just want to be sure I understand, I haven't read that particular study but --
Mr. Korns: Just coming out.
Justice Harry A. Blackmun: -- do you -- it suggests that its easier for the prosecutor to get a conviction when he asks to convince 12 people to agree unanimously than it is to convince a majority of six persons?
Mr. Korns: Yes, and I'm just telling you what --
Justice Harry A. Blackmun: Some rather improbable (Voice Overlap) --
Mr. Korns: -- Professor Bernard Grofman's article is one of the things that he proves with these formulas that he -- he advances, he concludes, does it so, that -- well first of all, I have to admit in all honesty that he prefers a 12 man jury to a six-man jury.
But his proposition is that if this Court finds a certain group of people constitutionally adequate or six-man jury like in Williams versus Florida then there's absolutely nothing wrong with the majority verdict.
He even goes so far as to advocate a simple majority.
Simple majority which is --
Justice Harry A. Blackmun: Well, but is he advocating it on the ground that it is harder to persuade a majority of six to convict than it is to persuade all 12 of the 12 man jury to convict, is he (Voice Overlap)?
Mr. Korns: Apparently he is Your Honor but I don't understand all his formulas.
Justice Harry A. Blackmun: Well, do you support that argument?
Mr. Korns: Your Honor, as I say --
Justice Harry A. Blackmun: I don't know, im just listening.
Mr. Korns: I don't understand these mathematical formulas --
Justice Harry A. Blackmun: Well, I wouldn't understand that one either now.
Mr. Korns: -- just to tell you the truth.
I know -- I don't have any mathematical background and all of these articles are great to me as far as the underlying reasoning goes.
Justice Harry A. Blackmun: I think maybe the term numerology may apply to what he wrote rather than what Mr. Justice Blackmun wrote.
Mr. Korns: I'm -- I just site this to this Court as I say because his Professor Stuart Nagel --
Justice Potter Stewart: Well, it may be.
Mr. Korns: I beg your pardon?
Justice Potter Stewart: It may be that a prosecutor and the jurisdiction that he studied doesn't bring a case for violation of the misdemeanors that have six-man jury unless the proof of guilt is overwhelming.
Mr. Korns: Oh, he is not --
Justice Potter Stewart: Or if he does, bring felony prosecutions if there's probable cause to bring the prosecution before a 12 member jury.
There are all sorts of facts that could skew those findings.
Mr. Korns: Right.
I -- I think Mr. Justice -- excuse me, I think he is working though not on actual court studies at all, that's what I'm telling you.
This is one of those fanciful things.
He is working on figures that he gleans just like Professor Stuart Nagel does from Ziffle, you know, I'd forgotten it, Kelvin and Ziffle taken, will death -- what all these other people did taking these figures out of that then getting their computers out and working out all this formulas.
But anyway, as I say, I just mentioned it to this Court because I think particularly Mr. Justice Blackmun would be interested in this articles because they are coming right out in the University of California and they were right on this point.
But fortunately for us, they are on our side this time.
Anyway, the states whole position is -- in this case, State of Louisiana's whole position in this case of course is that under Williams and under Johnson and Apodaca, a five out of six jury, it is perfectly constitutional.
We feel that if any kind of data are going to be used against our position, we feel that at least these experts ought to be put on the witness stand in the trial court qualified as experts like a doctor, anybody who's going to testify about insanity.
Give testimony the same kind as a right in these articles and be subjected to cross-examination on conflicting articles.
Just like as a psychiatrist is when he gets up and testifies about insanity.
We feel that if Louisiana's majority verdict is going to be thrown aside, it ought to be on concrete evidence showing that unfairness is -- results and not on speculation which is just in the realm of very interesting theories but which have never been --
Justice John Paul Stevens: Well, Mrs. Korns, is it speculation -- do you contend that it would be speculation that its -- would be harder to persuade five out of five to convict than it would be to persuade five out of six to convict.
Is that just speculation or -- doesn't seem rather obvious.
Mr. Korns: Our position is in a five out of six jury Justice Stevens which is what we have here, this jury which would have reach the unanimity, 95% of them.
In other words --
Justice John Paul Stevens: But they did in this time though.
Mr. Korns: They didn't this time but if a six-man jury, five of whom -- if a six-man jury have to be unanimous they're going to become unanimous 95% of the time.
Justice John Paul Stevens: Right.
Mr. Korns: And once the vote reaches one to five, it's not going to -- the one is not going to turn around the five.
Justice John Paul Stevens: But they could --
Mr. Korns: So all he's going to get is a 5% chance of a hung jury and the state can try him again and have just as good -- I mean, a very (Inaudible).
So, what is he losing really?
Justice John Paul Stevens: Well that really -- it does not respond to my question.
My question is to compare the requirement of unanimity in a five-man jury which the court has held is not enough.
Mr. Korns: Right.
Justice John Paul Stevens: With the requirement of getting five out of six to convict.
Mr. Korns: Well, I understand, yes.
Justice John Paul Stevens: Would you not agree --
Mr. Korns: Right.
Justice John Paul Stevens: -- that it's easier to get five out of six --
Mr. Korns: In other words why if Ballew is no good --
Justice John Paul Stevens: Let me finish my question.
Mr. Korns: -- aren't we any good.
Justice John Paul Stevens: Is it not -- would you not agree that its easier to get five out of six to convict than it is to get five out of five to convict?
Mr. Korns: Oh, Your Honor I'm going to avoid that question because I don't think that's the issue.
The issue here is one, --
Justice John Paul Stevens: Well I think it is --
Mr. Korns: -- is the six-man panel.
Justice John Paul Stevens: -- and I'd like you to answer it.
Mr. Korns: The issue we think is, is a six-man panel valid as a cross-section of the community as a protection against tyranny is -- so and so, which this Court not only found in Williams but upheld and reaffirmed in Ballew.
Justice John Paul Stevens: Well I understand, you just don't want to answer my question.
I don't suppose the answer --
Mr. Korns: We rely --
Justice John Paul Stevens: -- (Voice Overlap), that's probably right.
Mr. Korns: We rely -- alright, we rely on Apodaca versus Oregon and Johnson versus Louisiana and when the present Louisiana constitution would --
Justice John Paul Stevens: In which case, do not answer my question.
Mr. Korns: Whether its --
Justice John Paul Stevens: I'm just asking you whether you think we need statistics to demonstrate what I regard as a rather obvious proposition that it would be harder to persuade five out of five to convict than it would be to persuade five out of six to convict?
Mr. Korns: Yes.
But this Court didn't strike down the five out of five jury on that basis, it struck it down because it wasn't a fair cross-section of the community.
Justice John Paul Stevens: Well --
Mr. Korns: That when you get below six, you -- so, that -- respectfully, I don't think that's an issue here because of the reasons of striking down Ballew are not here.
This Court said in Ballew, you've got to draw the line somewhere and you withdraw it at six.
And we reaffirm our holding in Williams and Williams -- a six-man jury gives a sufficient cross-section of the population, provides a Bullock against Tyranny.
As a number of --
Justice John Paul Stevens: Then your argument Mrs. Korns, I -- you say my question is totally irrelevant to that analysis.
But under your analysis then, four out of six would also be adequate.
Justice Potter Stewart: Exactly Your Honor.
Justice John Paul Stevens: Because you still have your six people.
In fact --
Mr. Korns: Of course, --
Justice John Paul Stevens: -- three out of six would be adequate.
Mr. Korns: Of course in Williams this Court said -- the whole argument was how far are we going to go?
Justice John Paul Stevens: In fact I don't know why under your analysis you couldn't have a jury that said if any one of the six believes he's guilty, that's enough.
Mr. Korns: Well, most -- even Scotland, Scotland from time immemorial has had a bare majority verdict.
And as I say there are people who argue like this Professor Grofman that once a jury has swung to a bare majority, the chances that's it going to go back -- oh, so infinitesimal that you may as well come out then.
I don't take any position on that because that's not my case and in Williams I think members of this Court asked, “How far down are we going to go?”
And the answer in that case was, “We'll stop at some time.”
And in Ballew they -- this Court stopped it.
Now, I don't think its -- frankly, a question here that if you up hold five out of six then, you're going to have to -- I mean its clear from Ballew where you drew the line under Williams that if uphold five out of six, doesn't mean at all that you have to uphold anything more under that.
And having upheld ten out of twelve in Apodaca, five out of six is just half of it and even I can understand that.
Justice Potter Stewart: Well then, two out of three would be even better.
Mr. Korns: Well, this Court has said you can go below six so obviously we're not going to get six.
Justice Potter Stewart: Well, now you're five in your state.
Mr. Korns: No, Your Honor.
We have six, five out of six where I mean, we have to have a six-man jury.
Chief Justice Warren E. Burger: That's all Ballew decided was that --
Mr. Korns: Right.
Chief Justice Warren E. Burger: -- total number.
Mr. Korns: The total number and reaffirmed Williams many times.
Mr. Justice Blackmun said, “We reaffirmed everything we said in Williams as far as it been 16 enough and 6 rep -- serving all these important constitutional functions of a jury.”
Justice Potter Stewart: Well, the vote of one of them doesn't count, it isn't six?
Does it even know that person maybe sitting in the back?
Mr. Korns: I'd like to point out in this case that obviously the vote of one did count and he was listened to because the jury deliberated for 15 minutes.
It was unanimous from the corporation and five to one for Burch.
Now, those very facts show that the juror's one vote did count.
He voted one way and one and one the other.
And it's really -- I mean, its obvious just from those facts that they listened to him, that he voted one way and one and one on the other and that his -- that he never would've turned around the other five in the Burch case.
Chief Justice Warren E. Burger: Mrs. Korns, you missed an opportunity to point out that this Court allows dissenting opinions and dissenting votes but we count them anyway.
Mr. Korns: No doubt about that, absolutely.
Justice Potter Stewart: I call the people who voted for Outland in 1936, their votes were counted but Frank D. Roosevelt was President.
Mr. Korns: Well, if this Court -- the members of this Court don't have any further questions I'll submit the matter Your Honor.
Justice Lewis F. Powell: Mrs. Korns, I might say this, you mentioned a little while ago that -- what is it?
Mr. Korns: Grofman?
Justice Lewis F. Powell: 95% of your cases are unanimous.
Mr. Korns: No, I said that both Professor Nagel and Kelvin, and Ziffel and everybody agreed that it was --
Justice Lewis F. Powell: Oh, I'm talking about Louisiana's experience that 98 -- 95% of your six-man jury convened a (Voice Overlap) --
Mr. Korns: No -- if I've said that --
Justice Lewis F. Powell: Well how many do -- what is the percentage?
Mr. Korns: Nobody has ever kept -- that's my very point Your Honor.
Justice Lewis F. Powell: Well, in any event, certainly some of them that come in with a five to one conviction vote, if you had a unanimity requirement might come in with the unanimous vote were --
Mr. Korns: Oh, 95% of the time, they would under general rules of way jurors behave.
Justice Lewis F. Powell: Because once you get to five on one, that's all over with.
Mr. Korns: The -- and the others are tired of listening to it and they either bully or persuade the other person to give in just like in the old days, they wouldn't give him any light, heat, a food and they drag him from courts from one stand to the other until finally they all say --
Justice Lewis F. Powell: They do all these -- do Louisiana do this?
Mr. Korns: We'd like to, I think Your Honor but we can't.
Thank you Your Honors.
Rebuttal of Jack Peebles
Chief Justice Warren E. Burger: Alright.
Do you have anything Mr. Peebles?
Mr. Peebles: Not unless the court has any questions Your Honor.
Chief Justice Warren E. Burger: Thank you counsel.
The case is submitted.
We'll hear arguments next.