Johnson v. Louisiana/Dissent Brennan

by William Brennan

[p395] MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.^[1]

Readers of today's opinions may be understandably puzzled why convictions by 11-1 and 10-2 jury votes are affirmed in No. 69-5046, when a majority of the Court agrees that the Sixth Amendment requires a unanimous verdict in federal criminal jury trials, and a majority also agrees that the right to jury trial guaranteed by the Sixth Amendment is to be enforced against the States according to the same standards that protect that right against federal encroachment. The reason is what while my Brother POWELL agrees that a unanimous verdict is required in federal criminal trials, he does not agree that the Sixth Amendment right to a jury trial is to be applied in the same way to State and Federal Governments. In that circumstance, it is arguable that the affirmance of the convictions of Apodaca, Madden, and Cooper is not inconsistent with a view that today's decision in No. 69-5046 is a holding that only a unanimous verdict will afford the accused in a state criminal prosecution the jury trial guaranteed him by the Sixth Amendment. In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States,^[2] the Sixth Amendment's jury trial [p396] guarantee, however it is to be construed, has identical application against both State and Federal Governments.

I can add only a few words to the opinions of my Brothers DOUGLAS, STEWART, and MARSHALL, which I have joined. Emotions may run high at criminal trials. Although we can fairly demand that jurors be neutral until they have begun to hear evidence, it would surpass our power to command that they remain unmoved by the evidence that unfolds before them. What this means is that jurors will often enter the jury deliberations with strong opinions on the merits of the case. If at that time a sufficient majority is available to reach a verdict, those jurors in the majority will have nothing but their own common sense to restrain them from returning a verdict before they have fairly considered the positions of jurors who would reach a different conclusion. Even giving all reasonable leeway to legislative judgment in such matters, I think it simply ignores reality to imagine that most jurors in these circumstances would or even could fairly weigh the arguments opposing their position.

It is in this context that we must view the constitutional requirement that all juries be drawn from an accurate cross section of the community. When verdicts must be unanimous, no member of the jury may be ignored by the others. When less than unanimity is sufficient, consideration of minority views may become nothing more than a matter of majority grace. In my opinion the right of all groups in this Nation to participate in the criminal process means the right to have their voices heard. A unanimous verdict vindicates that right. Majority verdicts could destroy it.

Notes

1. [This opinion applies also to No. 69-5046, Apodaca et al. v. Oregon, post, p. 404.]
2. See, for example, First Amendment, Gitlow v. New York, 268 U.S. 652 (1925); Cantwell v. Connecticut, 310 U.S. 296 (1940); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); Fourth Amendment, Ker v. California, 374 U.S. 23 (1963); Fifth Amendment's privilege against self-incrimination, Malloy v. Hogan, 378 U.S. 1 (1964); Fifth Amendment's Double Jeopardy Clause, Benton v. Maryland, 395 U.S. 784 (1969); Fifth Amendment's Just Compensation Clause, Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897); Sixth Amendment's Speedy Trial Clause, Klopler v. North Carolina, 386 U.S. 213 (1967); Sixth Amendment's guarantee of jury trial, Duncan v. Louisiana, 391 U.S. 145 (1968); Sixth Amendment's Confrontation Clause, Pointer v. Texas, 380 U.S. 400 (1965).