Warren E. Burger: We'll hear arguments next in 51-61, Johnson against Louisiana. Mr. Buckley, you may proceed whenever you're ready.
Richard A. Buckley: Mr. Chief Justice and may it please the Court. This is an appealable Louisiana Supreme Court decision which affirmed appellant's conviction and sentenced for the crime of armed robbery. Two issues considered by the Court below and before this Court for review involve the question of jury, the question of arrest. Specifically with regard to the jury question, there are two aspects to it. Does the Louisiana jury system which provides for a non-unanimous verdict in serious felony cases clash with the Equal Protection Clause because it denies the benefit of unanimity to appellant, while extending it to those charged and tried for greater and lesser crimes. The second aspect of the jury question concerns whether, in light of Winship, the majority verdict is constitutionally permissible in that appellant has not been proved guilty beyond a reasonable doubt.
Harry A. Blackmun: Mr. Buckley, how old is the Louisiana system? Is it an ancient one?
Richard A. Buckley: It began in 1898 when Louisiana revised its Constitution and, as you know, grandfather clause and other provisions were made at that time. The other issue that was considered below and here before this Court is whether appellant's lineup identification which the appellant contends was a direct result of an unlawful arrest was inadmissible and should have been excluded from the trial of his case. The Court below, in response to the two issues considered, deferred to this Court on the question concerning the jury, although they did held that their system was fair and gave fairness to appellant's trial. And in regards to the lineup identification, the Louisiana Supreme Court found a lawful arrest based upon probable cause. The relevant facts pertaining to the two issues are as follows. Appellant, a Black citizen, was seized in his home before daybreak by six armed New Orleans detectives with shotguns who had entered his home without a warrant. A general search was conducted of all the rooms, no evidence connecting the appellant with the crime was found therein. Subsequent to some interrogation, appellant was booked about four hours after the initial entering of his home. A few days later, appellant was part of a general lineup consisting of armed robbery suspects and armed robbery victims, and he was identified by a person who had been a victim of an armed robbery about four weeks previous to appellant's arrest. I made mention that this was not the same person for whom appellant was booked for armed robbery initially at his arrest. The lineup identification was subsequently used at trial. In fact, the identification formed the primary basis of the evidence against appellant. Pretrial motions and hearings were held on the arrest and detention of appellant, and they were denied by the Trial Court. Appellant was tried on May 15, 1968 for armed robbery, a crime punishable in Louisiana for not less than 5 or more than 99 years without benefit of parole, probation, or suspension of sentence. The jury of 12 returned a verdict of 9 for guilty and 3 for not guilty which constitutes in Louisiana a conviction. Appellant was sentenced subsequently to 35 years of hard labor and is presently serving the 35 years in Angola, Louisiana.
Potter Stewart: Does the record show or do you know how long the jury deliberated?
Richard A. Buckley: I don't know whether the record shows it, I believe it was less than half-an-hour, Your Honor.
Potter Stewart: How long did the trial last?
Richard A. Buckley: The trial was one day. Most of the facts, of course, were taken up in pretrial hearings which lasted over a span of four days.
Warren E. Burger: Let me get that last, four days all together?
Richard A. Buckley: Louisiana conducts separate pretrial and the trial itself, pretrial hearings concerning the arrest, detention etc took place earlier, and over a span of three days they were out without a jury. In regard to the issue of whether the non-unanimous verdict is a denial of Equal Protection, I briefly mentioned the Louisiana jury system. Louisiana provides that in Capital cases, it'd be a jury consisting of 12 of which all must concur. In crimes that could be punishable by hard labor, the jury consists of 12 of which only 9 have to concur in the verdict. In crimes which may be punishable by hard labor, the jury consists of 5 jurors, of which all must concur in the verdict. Louisiana asserts the reason, and this has also been explained in some judicial decisions of Louisiana, but in their brief, they indicate the reason for this difference in the classification between the different crimes and the way they're tried is to reduce cost and expedite matters. We contend that this is not a rational basis for Louisiana to extend unanimity to some and deny to the appellant.
Speaker: Well, your equal protection, I suppose, is based on the difference between the Louisiana requirement in capital cases and which requirement with respect to the non-capital cases which are subject to punishment of hard labor. Is that your equal protection?
Richard A. Buckley: Yes. If I may, Your Honor, I'll give you an example of that.
Speaker: Your equal protection doesn't work down the line, does it because you -- on that basis, you get better protection than with 5-man juries?
Richard A. Buckley: It works down the line concerning the benefit of unanimity and the function it plays in the jury trial, Your Honor, which I can show. To give you an example of how it works up the line is that, as you know, in most jurisdictions Louisiana won, in a Capital case, the jury can return a recommendation that the punishment be without the death penalty. In Louisiana, an individual that the jury does return that recommendation to is eligible for parole and pardoned within 12 years. And, asI indicated earlier, an individual in the armed -- convicted of armed robbery, as appellant was, does not have the benefit of parole or probation or suspension of sentence and must serve the entire time and the verdict could be until 99 years.
Harry A. Blackmun: Mr. Buckley --
Richard A. Buckley: This, by the way, was an amendment of 1966.
Harry A. Blackmun: As a lawyer engaged in the defense of criminal cases, do you think it's harder to get unanimity among 5 or 9 out of 12?
Richard A. Buckley: I believe it's harder to get unanimity out of five, and that may have been one of the reasons that the District Attorney Association of Louisiana has attempted twice during the 1960s to have that changed from five to four out of five unsuccessfully.
Harry A. Blackmun: Well, 5 out of 5 is obviously more difficult than 4 out of 5, but I wondered if 5 out of 5 was harder to obtain than 9 out of 12.
Richard A. Buckley: I feel it is, Your Honor, because five out of five forces the jurors into the deliberating process and in the exchange of the doubts that each may have, it enables them, one to convince another and the two groups, two coalitions that might have gone in there with different views are able then to persuade one group to the other. Whereas, in a 9 out of 12, it's possible, as in this case it may have happened, that the jurors went immediately from the jury box into the deliberation and made a vote without any aspect of deliberating process coming into function.
Potter Stewart: And in any event, whether it'd be 5 or 12, the fact remains that a single person can result in a hung jury if you require unanimity?
Richard A. Buckley: That's correct, Your Honor.
Potter Stewart: One, and that's true whether it'd be 5 or 12?
Richard A. Buckley: That is where the thrust of unanimity comes, that you must -- the jury in their exchange of persuasion among themselves, have to convince that person who has the most strongest doubt whereas, in 9 out of 12, the 9 least that are in doubt --
Potter Stewart: Mr. Buckley, what are the Capital crimes in Louisiana, murder?
Richard A. Buckley: The usual, murder, aggravated rape.
Potter Stewart: Rape, aggravated rape, how about burglary?
Richard A. Buckley: No, aggravated burglary and burglary are tried by 9 out of 12.
Potter Stewart: So, it's murder, aggravated rape, that's it, treason I suppose?
Richard A. Buckley: Treason, kidnapping.
Potter Stewart: Kidnapping, even when the victim is returned unharmed?
Richard A. Buckley: I'm not sure, Your Honor.
Thurgood Marshall: Do you want unanimity with 12 in all crimes?
Richard A. Buckley: No, I don't think that 12 is the requirement. It's not the numbers that's important as this Court so well-expressed in Williams. I think it's unanimity in its function and its close and direct association to the essential jury functions that is the key to the problem.
Thurgood Marshall: Well, suppose they say a 9 out of 12 for murder, then you'd be out of courtrooms?
Richard A. Buckley: No, we wouldn't, Your Honor.
Thurgood Marshall: Why not?
Richard A. Buckley: I -- because then we'd still have the argument that this does not reach the constitutional requirement of guilt beyond reasonable doubt.
Thurgood Marshall: But, you have equal protection of course?
Potter Stewart: If we were 9 out of 12 for murder and 4 out of 5 for misdemeanor?
Richard A. Buckley: Yes, they extended it both ways.
Potter Stewart: You'd be clearly out on equal -- on you equal protection argument?
Richard A. Buckley: Correct.
Harry A. Blackmun: Do I understand that you would not object to a two-man jury or a one-man jury?
Richard A. Buckley: I would. There's some slippery slope, as was mentioned in Williams is going to be reached very soon in regard to the jury and unanimity. Two would be a very difficult jury to cope with. You're going to have -- perhaps have a split from the beginning and it may result in many hung juries there. I think you'd have to have a reasonable number that's going to be represented about the community.
Harry A. Blackmun: Where would you draw the line?
Richard A. Buckley: I believe that this Court would be able to draw better I. Six seems to work and perhaps 5, as now existing in Louisiana.
Warren E. Burger: Well, now when you responded to Justice Blackmun, were you responding as to your own choice as a matter of policy or a constitutional requirement?
Richard A. Buckley: Constitutionally, I will adhere to this Court's decision in Williams.
Thurgood Marshall: Of course, you recognize that some defense counsel would rather have 25 of the unanimous requirement?
Richard A. Buckley: There is a point that reaches the --
Harry A. Blackmun: Mr. Buckley, in any event, you are not attacking the five-man in this case?
Richard A. Buckley: Only in regard to the equal protection argument, we're not attacking the number of five, no, Your Honor. Another aspect with regard to the Equal Protection argument is that Kalven & Zeisel, the American Jury had given some evidence that in crimes or trials where the verdict has to be unanimous, there are hung juries about 5% of the time, whereas in non-unanimous jury verdict type cases a hung jury results about half that time. Taking that statistic and comparing it to what happens to the hung juries in the unanimous situations and those which, in Louisiana, permits convictions, it indicates, as expressed in our brief, that there'll be a result about 44% convictions in Louisiana and about 12% acquittals if you use the statistics that Kalven has. This, of course, does represent that there is a greater chance of conviction than acquittal in Louisiana scheme of providing the Rule of 9 out of 12.
Warren E. Burger: Is that the standard, the constitutional standard, Mr. Buckley, which is likely, more likely or less likely, to produce a verdict of guilty or not guilty?
Richard A. Buckley: No, it's not the constitutional standing, Your Honor, but it goes to show the value of the mistrial and the hung jury and that when the jury in this league begins the deliberation, if there are three or more jurors that have a doubt, this represents a substantial doubt, and I think that the statistics in the American Juries go to (Inaudible) and for Louisiana to convict on that basis is the denial of the constitutional --
Warren E. Burger: Would you have the same objection if the 9-3 verdict were permitted in Louisiana after three hours of deliberation or two or four hours?
Richard A. Buckley: Yes, I would, Your Honor, personally. I don't think that because of some of the types of crimes that can be tried under the 9 out of 12. For example, the Communists -- story to Communist propaganda is a serious felony in Louisiana. It could be tried by the rule of 9, that any time limit should be attached to deliberations, like a very vital function of the jury is performed by the deliberative process and it should not be restricted in any way.
Warren E. Burger: Well, the hypothetical situation that I put to you that it applies in some states, doesn't restrict it. It restricts the jury merely in returning a less than unanimous verdict until they have run the course of some minimum period of deliberation. In many states, as you know, in civil cases particularly, after x-hours of deliberation, they may return a verdict of 5-6 in a civil case. Now, do you think that's as constitutionally objectionable in criminal cases as the one we're dealing with here?
Richard A. Buckley: I think it's more objectionable in criminal case to permit that -- the activity you described, Your Honor.
Warren E. Burger: Well, I thought you were complaining at the brevity of their deliberations under the 9-3 provision of Cal -- of Louisiana, permitted a verdict to come back in a short time and --
Richard A. Buckley: That is also another aspect of it. What I'm indicating in regard to this particular jury verdict is that there might not have been any deliberation, and that is permissible under the jury scheme of Louisiana. One further aspect of the equal protection argument we'd like to make is that the divided jury verdicts result in denial of essential jury functions which we feel are closely associated with the unanimity rule. For example, a significant segment of the community in Louisiana, 25% is not part of that conviction verdict. Thus, instead of shared responsibility of a jury's guilt determination process, we have a split or divided responsibility. There is a possibility that minority is not given an opportunity to express its views, thus rather than promote group deliberation, split verdicts may prevent group deliberation. It significantly increases the chances of government oppression. It's well-known that, in the past, government oppressions works on the basis of a majority will and the minority, the three jurors in Louisiana, may be citizens who were involved in the sitting cases in 1960, Garner versus Louisiana, Keller versus Louisiana, and in Lambert versus Louisiana. And, finally, after obtaining and becoming part of that fair cross-section of the community, be it Keller versus Louisiana and other cases this Court has decided and which the Fifth Circuit has been confronted with, again in the 1960s, the minority of three jurors excluded at the end may be from that section of the community which has just present -- recently been included on the juries.
Speaker: Do you think the federal practice require an unanimous verdicts, during the criminal cases, does the Constitution require it?
Richard A. Buckley: Yes, Your Honor.
Speaker: Federal trials?
Richard A. Buckley: Yes, Your Honor.
Warren E. Burger: What particular provision of the Constitution would you rest on there?
Richard A. Buckley: I would rest on both the aspect of the right to jury and the right to a fair jury and under the Due Process Clause of the Fifth Amendment. That without --
Speaker: History might have something to do with it I suppose?
Richard A. Buckley: -- without the requirement of unanimity, it is going to cut into the fairness of the trial and therefore, not be the trial as -- the trial and the functions and purposes as expressed by this Court in Duncan. As expressed by this Court, In re Winship, gave a reasonable doubt standard and constitutional status, in essence, the reasonable doubt standard or formula is merely a guide to both prosecution and to the jury. As to the prosecution, it indicates to him the degree of proof or degree of persuasion that he must be present in order to secure a conviction. To the jury, it is a guide to indicate to them the degree of belief of the individual's guilt in order for them to return and agree upon a conviction. As to the prosecution's function, his is to the fact finder. We contend that, in this case, the fact finding body consisted of a jury of 12 individuals and to exclude any part, that fact finding body would be unreasonable. And, in this case, there were three jurors that were unpersuaded and unconvinced by the evidence presented by the prosecutor. And, furthermore, as to the jury, the reasonable doubt standard is not a mechanical process. Reasonable men differ reasonably about the proof that a prosecutor may present to them. That is the value of the jury's deliberation process, so that during deliberation, views could be expressed, doubts can be examined, and the jury can finally come to unanimity on a particular question before them. Deliberation certainly helps to clarify some of the juror's doubts and, in this case, there may not have been any deliberation at all.
Thurgood Marshall: Suppose they deliberated for four days and came in 9-3?
Richard A. Buckley: I would say, Mr. Justice Marshall, that that jury has a very substantial doubt and that is the reason why they cannot come to an agreement.
Thurgood Marshall: Suppose they come in 11-1?
Richard A. Buckley: After that long period of time, I would also have to say that.
Thurgood Marshall: Well, my whole point is, I just want to know how much stress you're putting on this length of time of deliberation, that's all I'm trying to clear in my mind. You seem to say that the only purpose that you want to (Inaudible) jury is so that they'll deliberate and obviously from you answer, that's not what you mean to say.
Richard A. Buckley: No, Your Honor, that's not the only purpose. I am trying to show that it's one of the essential functions of the unanimity rule which is directly associated, of course, with the reasonable doubt standard, is so that there will be deliberation. I'm showing that what results there are when there is no deliberation. The -- how this can dilute and water down the reasonable doubt standard itself and how it almost is a mechanical process by permitting the 9-3 or the rule of 9 is for them to go in and take their initial vote. I think if you examine most of the split decisions that have been appealed, you will see that they were of short duration of deliberation, most of them under an hour. In others, deliberation goes further, they most likely reach --
Thurgood Marshall: Are the most of the 11-1 juries are short-term? I don't know what part of the country you're talking about.
Richard A. Buckley: No, I'm talking about Oregon and Louisiana now, the other jurisdictions that will result in a mistrial.
Thurgood Marshall: That's what I mean. There are quite a few.
Richard A. Buckley: Correct, about 5%, Your Honor.
Thurgood Marshall: That's days and days and days. That's the trouble with the weight you're putting on these two different points. I think you realize that you just can't take 12 out the clear blue sky and bag it up. That's the feeling I get from your argument, am I right? I don't understand, Your Honor, but -
Thurgood Marshall: Well, why 12?
Richard A. Buckley: I'm not, again, indicating it has to be 12, but all those that are around the jury is what I am urging must agree on the verdict of conviction.
Thurgood Marshall: You would be satisfied with the five-man unanimous verdict of murder, including the death penalty.
Richard A. Buckley: I would be, Your Honor.
Thurgood Marshall: Is that your limit?
Richard A. Buckley: That the state and the society that makes the laws would probably prefer something less -- more further than servitude.
Thurgood Marshall: And here you have 9 men?
Richard A. Buckley: But it's 9 or 12. In three, you still have the doubts, Your Honor, and that's the essential feature.
Thurgood Marshall: So you're back where if you're just on the unanimous?
Richard A. Buckley: Correct.
Warren E. Burger: In other words, what you're saying is that because three have a doubt, nine must have a doubt or should have had a doubt?
Richard A. Buckley: The jury as a whole should have a doubt under the concept of the reasonable doubt standard. Actually, the reasonable doubt standard does not go to the jury as a whole. It goes to that -- a conviction -- verdict of conviction cannot be returned with any individual juror having a doubt. I don't want to get mixed up in theories that express between the group entity and the individual entity, etcetera.
Warren E. Burger: Do you see any parallel at all between a requirement of unanimity that you argue for in a jury case and a requirement that has sometimes been proposed of unanimity of multiple-judge Appellate Court? Is there any connection between the two?
Richard A. Buckley: Only if they were sitting on the same type of case. If they were reviewing from the initial status, a criminal trial, yes.
Warren E. Burger: Well, when an Appellate Court, this Court included, reviews a claim of sufficiency of evidence, is there some connection between that and the jury function?
Richard A. Buckley: No, Your Honor.
Warren E. Burger: Because they enlarge on that a little bit?
Richard A. Buckley: Well, Your Honor, we have reserved the jury function to layman in the Constitution and not the judges. They're totally two different functions and, when the jury speaks and if they speak “not guilty,” it concludes that matter. As we know --
Warren E. Burger: I was addressing myself to the situation when the jury has found a guilty verdict and it is being reviewed for the sufficiency of the evidence.
Richard A. Buckley: This goes to -- strictly goes to the question of law and we also -- this is given for another added protection of the accused, Your Honor.
Warren E. Burger: So you consider that purely a question of law than when an Appellate Court reviews on that basis?
Richard A. Buckley: It, in some instances, may develop facts, but it's a different function from considering the facts at trial and the witnesses, etcetera, that were there. In regard to the second issue in this case concerning the lineup identification, this Court has consistently indicated their preference and reason for once. I feel that the facts of this case show why this preference and necessity is needed. As I indicated earlier is with a warrantless arrest in a home, conducted by six officers armed with shotguns, there is doubt whether the officers possessed sufficient probable cause to secure a search -- an arrest warrant under Louisiana law.
Speaker: This was post waive the lineup or the post waive case lineup?
Richard A. Buckley: It's the post waive --
Speaker: Did he have a lawyer at the lineup?
Richard A. Buckley: He had a lawyer that was representing all of the suspects that were -- did not have their own individual attorneys, given general --
Speaker: Including him?
Richard A. Buckley: Including him, yes, Your Honor.
William J. Brennan, Jr.: Well, I gather you're not arguing that this is invalid on the waive, but only --
Richard A. Buckley: No, not --
William J. Brennan, Jr.: Only that the arrest was invalid and this was a fruit of that, isn't it?
Richard A. Buckley: Correct, Your Honor.
William J. Brennan, Jr.: Yes.
Byron R. White: And you don't argue there was no probable cause?
Richard A. Buckley: We first -- we argued that before the Supreme Court of Louisiana. Here, we're arguing --
Byron R. White: No warrant?
Richard A. Buckley: -- basically, no warrant, time to get a warrant, no exceptional circumstance existing here for them to proceed without first obtaining a warrant.
Warren E. Burger: Well --
Richard A. Buckley: But we do, in pointing out why such a case requires the necessity for a warrant, and have indicated that there is a chance here that the officer did not have probable cause to secure an arrest warrant and, that is, this Court has indicated in Wong Sun, in subsequent cases, the standard of probable cause should be at least as strong without a warrant as that required under the petitions of securing a warrant.
Warren E. Burger: The essence of your argument is that whenever time permits, there must be a warrant to make an arrest, that's what it adds up to, isn't it?
Richard A. Buckley: In a home.
Warren E. Burger: Just in a home you would require that?
Richard A. Buckley: This particular case, Your Honor, yes, with respect to a home. We're acquainted with the circumstances of street encounters and other exception is made by this Court. We're restricting it to the home.
Warren E. Burger: Very well.
Richard A. Buckley: Thank you, Your Honor.
Speaker: Let me see, if I get your identification problems. What you're saying is that if the arrest is illegal then the identification, however good it was, on its own body, is an unlawful proof?
Richard A. Buckley: Yes, Your Honor.
Speaker: That's what you're saying.
Richard A. Buckley: It has been a basis of the arrest and illegal detention to follow, very similar to that is Patton versus Mississippi.
Byron R. White: Well, I suppose you would argue -- would you argue the same if he wasn't identified until the trial?
Richard A. Buckley: Yes, Your Honor.
Warren E. Burger: Mrs. Korns.
Louise Korns: Mr. Chief Justice, may it please the Court. At the beginning of my argument, I'd like to inquire whether it would be possible maybe to have a little more time in view of -- than the regular half hour in view of the two very important questions posed by this case, but I'll certainly leave.
Warren E. Burger: Well, we'll see what your needs are.
Louise Korns: Yes, Your Honor.
Warren E. Burger: Since Mr. Buckley has run out of time, if we do enlarge yours, we'll enlarge his a little bit.
Louise Korns: Certainly, Your Honor. To begin with on the jury question, the first question in the case, just to touch briefly on the historical background of a majority jury verdict system. As this Court knows, various theories have been advanced to explain why unanimous jury verdicts became required in many jurisdictions, particularly in England, up until 1967 between the 18th Century, about 1967. And, Chief -- Lord Justice Devlin, I think most writers concede that Lord Justice Devlin's theory that it was purely by chance is the correct theory. As Lord Justice Devlin and I think Professor Fayer (ph) also in the Harvard Law Review point out, during the middle ages in England, a trial by compurgation there was the custom of a party having to have his oaths -- his version of the facts supported by the oath of 12 jurors. So, they would assemble 12 compurgators. If these 12 compurgators couldn't support the oath of the party, they'd keep adding to him and adding to him until, finally, out of who knows how many number, 100, they had 12 men swearing to the position of one party, and then he won the case. Just to skip briefly over, it is the function of the jury ran in the 12th Century gradually changed to judging credibility rather than swearing to it. The practice of adding extra jurors was eliminated, but the requirement that the crown obtained 12 votes to convict was kept and, therefore, as Mr. Justice Devlin points out, the unanimity requirement grew out of a majority system of jury verdicts in which at least 12 votes were needed to support a verdict out of an untold number. Now at the present time, as this Court knows, majority verdicts exist not only in six states in this country, as well as Puerto Rico, but in many -- in countries which formally were part of the British Commonwealth, notably, it had existed in Scotland 8-7 verdict for time immemorial and worked very well. And England, as this Court knows, in 1967 adopted in the Criminal Justice Act of that year, adopted majority verdicts in criminal trials. Specifically, the law requires that where a jury consists of not more than 11, 10 can bring in a verdict. Where a jury consists of not more than 10, nine can bring in a verdict provided that a verdict of guilty cannot be brought in by a majority verdict unless the jury has deliberated at least two hours. I think this Court is familiar with the fact that, in England, jurors drop out during the trial rather than alternate jurors, but that's immaterial and I won't go into that point. As this Court also knows, because it pointed out in Williams versus Florida, we had majority verdicts in colonial times in a number of states, notably Pennsylvania, Connecticut, and the Carolinas I think. As this Court also pointed out in Williams versus Florida, it rejected in fact in Williams versus Florida the argument that every feature of the common law jury, as it existed, at the time our constitution was growing up was incorporated in our Constitution every time the word “jury” is mentioned. This Court rejected that and pointed out that, as originally submitted by Mr. James Madison in the House -- to the House and as originally adopted by the House, the jury amendment required that, among other things, the jury – a verdict must be unanimous. That it passed the House this way was rejected in the Senate and, as ultimately adopted, the Sixth Amendment only said that in a criminal trial, an accused is entitled to trial by jury, what kind, and impartial jury. It doesn't mention the number or whether it has to be unanimous. Now, we get right down to the issue in this case as I see it, as was posed by this Court in a footnote in Williams in which it said it took no stand on whether a majority verdict violated due process. And, as this -- as Louisiana sees it, the issue is very simple. Whether the use by a state of a majority verdict in a criminal trial violates the Due Process Clause of the Fourteenth Amendment because it infringes the principle that a person accused of crime cannot be convicted except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime. That is the issue for decision as far as Louisiana sees it. As Louisiana sees it, the equal protection argument is really subordinate and not important because if in fact a majority verdict satisfies due process, as we think it does, the equal protection question really goes out of the picture because, as soon as everyone similarly situated is treated as the way the appellant here was, that is, everybody in Louisiana accused of a crime for which the punishment is necessarily hard labor is treated the same way as we see it, the crucial question is whether a majority jury verdict satisfies or violates due process in the Fourteenth Amendment and that to us, is the crux.
Potter Stewart: Well, you can still have a -- it doesn't answer the equal protection claim, does it? You could say it satisfies due process for a state to charge $20 a year for an auto license tag, but it certainly wouldn't violate the Equal Protection Clause for a state to charge $20 to some of its motorists and $10 to the others based on some irrational classification, wouldn't it?
Louise Korns: Well --
Potter Stewart: Even though neither one would violate due process?
Louise Korns: Well, actually, the truth is, Mr. Justice Stewart, that as I studied this case and evaluated it, I arrived at that conclusion. I just express because as we -- I'll show later in the argument, there's no difference in the percentage of convictions between cases tried by majority verdict and cases tried by unanimous verdict, and that would be the crux of any unequal protection argument. As I see it, what can an accused argue on his equal protection argument, unless he can say “look, I have a 10 or 15 or 20% greater chance of being convicted by a majority verdict than another person in my state has who is accused of another type of crime.” As I see it, that's the only type of unequal protection argument you can make.
Warren E. Burger: Mrs. Korns.
Louise Korns: Yes, Your Honor?
Warren E. Burger: To pursue Mr. Justice Stewart's question, if a state provided that all automobiles of up to 2,000 pounds would have a license of $10 and all those over 2,000 would be $20, would there be any equal protection problem in that?
Louise Korns: Well, right there, there would be a monetary loss to the person who had to buy the license, if nothing else. But, our position in this case, there is no loss to the accused about -- by being tried by a majority rather than a unanimous verdict. So, I don't -- excuse me, Mr. Chief Justice, but I don't think the argument is parallel in the view of the position we take because, certainly if one person had to pay $10 for a license then another person had to pay $20, right there is the difference of $10, somebody's being hurt $10.
Warren E. Burger: Well, but if it's based upon the weight of the automobile or the price of the automobile, is that an invidious discrimination?
Louise Korns: Well, there again, in the alternative I'd say it wasn't, right. On the alternative I'd say it wasn't, but right at the beginning we say that in Louisiana -- that every -- all the study I've been doing on this case, since I first started working on this brief, convinces me more and more that there is absolutely no higher rate of conviction in jurisdictions in cases tried by majority verdict than in unanimous verdict cases, and I'll explain to the Court why when I get into the analyzing the way a jury arrives at its verdict as Mrs. Kalven & Zeisel had pointed out in their brief.
Thurgood Marshall: Mrs. Korns, is it possible to be convicted of murder and get 35 years in Louisiana as sentence?
Louise Korns: If the jury in Louisiana brings in a verdict of guilty without capital punishment, technically, the accused is sentenced to prison for life, but life, life I think -- I'm not sure what life means, Mr. Justice Marshall, but it doesn't mean natural life.
Thurgood Marshall: Your point is, as I understand the petitioner's argument, he says that if he's going to end up with a punishment in prison, the same prison that somebody else goes to for practically the same amount of time, that he has less chance of a hung jury with the majority ones than he has with the unanimous ones?
Louise Korns: As we'll point out, Mr. Justice Marshall, he has about 1% less chance, about 1%, and when you go into the convictions on retrial, that's a whole second point in our brief, it's immaterial on a practical basis. There is really -- and the more you study it, the more you --
Thurgood Marshall: Why is it that you have unanimous protection?
Louise Korns: Well, that's a good question and my position is the more I study it, I think it's purely psychological and, as a matter of fact, I wouldn't see any difference. I don't think if you allow a 9 out of 12 verdict, there would be any higher conviction right and the only trouble with having a 9 out of 12 jury involving -- when a jury has to bring in a death sentence is that, perhaps because death and putting someone to death fills people with guilt and awe, it may be that 9 wouldn't act if 12 held out as they will just for punishment because of the finality, But that's the only difference I see because, as I will show in my second point in this argument, there is no difference -- when you study the question and you'll see how juries operate, there is no difference between the conviction rate when the verdict is a majority verdict or when it's a unanimous verdict. It's -- see, in England, when they went -- I studied lots of English materials in writing this brief. Mr. Roy Jenkins, he was Home Secretary and who pushed the majority verdict through parliament because he was so convinced it would help the Administration of Justice in England, He states and his arguments are summarized in these various British journals that I've cite in my brief, he stated in the House of Commons or someone stated for him that he was sure that the innocent would not suffer for this, and he pointed to the time honored practice in Scotland of brining in a criminal verdicts by 8-7, 15-man jury, 8 can convict. And, he pointed out that, certainly, in Scotland nobody had ever complained that there was -- that the innocent suffered or that there was any discrimination against an accused because he was convicted by 8 out of 15 men.
Harry A. Blackmun: Mrs. Korns, as far as you know, has the Louisiana system ever been federally attacked before this case?
Louise Korns: Only in Duncan, it was attacked on the basis that we allow trials before judges when the punishment could be up to two years, and we lost that case. And, this Court said we had to have juries for anything over -- for any serious crime which, in Ballwin, this Court narrowed down to six months. But, actually, after we lost Duncan, we then amended our laws to have everybody either to bring down the punishment to six months or to allow a jury trial in anything over six months. As a matter of fact, Mr. Justice Blackmun, the first part of our constitutional provision here which is set out on pages 324 of Louisiana's brief is that all trials in misdemeanor cases shall be by judges, but then we had sentences up to two years. Therefore, this Court's decision in Duncan cut across that first provision of our constitution which goes on and says “you see, it's very logical the way the con -- the way the legislature set it up in 1898.” They said all misdemeanors shall be by a judge alone. All crimes which may be punished by hard labor shall be by a five-man jury, all of whom must concur. All crimes which shall be punished by hard labor, which is the instant one, shall be by a 12-man jury, 9 of whom must concur. All capital crimes shall be by a 12-man jury, all of whom must concur. That's the way we set it up and that's the way it still is, except for the Duncan provision that cuts across the trial of misdemeanors if more than -- a sentence of more than six months can be imposed.
Harry A. Blackmun: But, on the unanimity provision or lack of it, you've had no federal attack for 75 years?
Louise Korns: No, we have never had it. This is res nova. This is it right here, and that's why I say this is very important for Louisiana, this case and this point.
Hugo L. Black: May I ask you? You've been arguing about whether more would be convicted or less would be convicted. What difference does that make to the constitutionality of the law?
Louise Korns: Well, I don't think it does, Your Honor. In the alternative, that's my second point, but just to -- you see, the whole picture of the appellant's case has been here and that's why I researched this so carefully. Their whole case has been locked. We've been denied due process of law because we had a much greater chance to be convicted than somebody tried by unanimous jury or a five-man juries. And so, since that was a pitch of their argument, this is what I researched and built up, I agree with you. In England, for instance, they say “well, what we want to do is catch the guilty people.” They're very frank about it you see, and I don't see any harm as long as you're not unfair in trying to convict criminals and put them where society intends them to be. But, to get back to the due process argument, Your Honors, this is --
Speaker: When did the British go to -- give up the non-unanimous verdict?
Louise Korns: I beg your pardon?
Speaker: When did the British --
Louise Korns: When? In 1967.
Speaker: And before that, it had been unanimous?
Louise Korns: It had been unanimous from about --
Speaker: For how long?
Louise Korns: -- the 13th Century when, as I say, Mr. Justice Devlin said it developed by chance. And, from 19 -- 13th Century up until the 20th, of course, it existed at the time the American colonies were formed and that's why it's clothed in this sort of mythical status in this country. As I say, when you tear all fiction and fantasy aside though, there is no harm to the accused and a lot of help to the Administration of Criminal Justice from using a majority verdict system.
Warren E. Burger: Well, of course, since you mentioned it, you recall that there were, I think, 5 colonies out of the 13 --
Louise Korns: Exactly.
Warren E. Burger: -- which had less than unanimous.
Louise Korns: Exactly. As a matter of fact, when you read about why Mr. James Madison's jury amendment ran into so much trouble in the Senate, that's exactly why it ran into trouble in the Senate.
Warren E. Burger: And there was no federal law on the subject then at all, was there?
Louise Korns: No, actually --
Warren E. Burger: In the federal government?
Louise Korns: The only way you can say -- the only logical argument a person can make about needing a unanimous jury requirement in capital -- in criminal trials is only two arguments they can make, as I see it. One is the argument which this Court rejected in Williams versus Florida, that is an -- but which the Court had sort of sanctioned in earlier cases, but which it repudiated in Williams versus Florida and that is, that the jury as it existed at common law in England at the time our constitution was drafted is the jury that the drafters of the Constitution had in mind. This Court rejected that idea in Williams when they rejected the 12-man jury because at the time the Englishmen founded -- settled American colonies, they had a 12-man unanimous jury, that was rejected in Williams. Now, the only other argument you can make is “look, I stand an unfair chance of being convicted under this type of jury system.” Somehow, rather, I'm going to be convicted. I'm not going to --“ See, they all get that the reasonable doubt standard is violated, and this Court held in In re Winship that the fact that an accused had to be convinced by proof beyond a reasonable doubt was part of the due process. So, that's the crux of their argument. If they're 9 out of -- if a 9-3 verdict comes in, it means that 3 men doubted and the burden of proof hasn't been carried. Well, the flaw in that argument is this. This jury came-in in 20 minutes, to answer the question of Mr. Justice Stewart I think, in 20 minutes. I surmise that they must have gone out, elected their foreman, and it was a first-to-second ballot, they came-in in 20 minutes. Statistic show in this Kalven & Zeisel's Study of the American Jury with which this Court is familiar, I know because they -- this Court cited it in the Williams versus Florida, study show that any jury and the American Jury, this book, includes majority verdicts so it includes Louisiana juries. Any jury with deliberate juror -- when a jury deliberates long enough, it will reach unanimity in 95% of the case. They say that over and over again. That's why in the present case, there's no -- there was a 95% chance if this jury had not come back into the courtroom at the end of 20 minutes with a 9-3 verdict of guilty, there's a 95% chance that if they had sat there long enough it would've reached unanimity. There is no chance in Louisiana's view that it would've acquitted the accused because Kalven & Zeisel show in their book that once a majority, a great majority develops like 9-3 it is almost impossible for the minority to persuade the majority. They say only with extreme infrequency does a minority persuade the majority to change its mind.
Hugo L. Black: May I ask you again, is that the way we determine constitutionality?
Louise Korns: See, they -- I agree with you, Mr. Justice Black, but I'm just trying to answer their questions. They were arguments they made to say why this Court should set aside. They claim that it's because the reasonable doubt principle is infringed, there's a higher chance of their being convicted, and so I just answered their questions. I'll agree with you. I don't think it is. As a matter of fact --
Hugo L. Black: What do you think is the way to establish the trail of law required or to deny the trail of law under the --
Louise Korns: Well, this Court decided in Williams that 12 was not needed. That's what this Court decided in Williams and this Court then went on to point out that five-man jury it did not think -- it thought it was large enough. Well, in the first place, it said a jury has satisfied the requirement which is the primary requirement of jury trials, that a body of laymen be interposed between the government and the accused as a protection against tyranny. The body and the five men they said and you all -- this Court said that Williams satisfied and certainly, 12-man jury, 9 of whom must concur to render a verdict certainly serve the same function. It serves as a shield between the government and the accused, that keeps the government from oppressing the citizen by standing there as a body of impartial laymen. And, one of -- a member of this Court asked, I think it was Mr. Justice Black, does a federal jury have to be unanimous. I say, it doesn't and the proof is that they had to enact a statute to make it that way. In other words, if the Constitution just was clear, you know, even almost clear, that a jury had to be unanimous, why would the federal -- why would US Code provide that it had to be unanimous?
Hugo L. Black: What does it say? What does the Constitution say?
Louise Korns: The Constitution only said that, in all criminal trials, the Sixth Amendment, the accused is entitled to a trial by an impartial jury and that's all it says, an impartial jury of the neighborhood in which the crime occurred, that's all the Constitution said. And, the unanimity and 12-man requirements which were originally in the Sixth Amendment, as this Court noticed from Williams, was struck -- was stricken out in -- by the Senate and as adopted. In other words, the draft is rejected, both the 12-man and the unanimity.
Potter Stewart: I suppose, Mrs. Korns, it could be argued, although I know your counsel doesn't make the argument, that a divided jury is not an impartial jury?
Louise Korns: Well, you see --
Potter Stewart: If nine of them are partial to the prosecution and three of them are partial to the defense, then that's not an impartial jury, is it?
Louise Korns: But you see, Mr. Justice Stewart, the fallacy of that argument is that this jury would've. There was a 95% chance of this jury becoming that way, and when you study the way juries reach unanimity, you understand more what I mean. Kalven & Zeisel say that --
Potter Stewart: No, I wasn't talking about that. I was simply getting a at the Constitution of the United States.
Louise Korns: Right, that's right. Exactly, that's his argument.
Potter Stewart: But Kalvin & Zeisel --
Louise Korns: That's his argument.
Potter Stewart: They're not in the Constitution.
Louise Korns: They're not in the Constitution but they say--
Potter Stewart: The word “impartial” is.
Louise Korns: Right.[Attempt to Laughter] Their theory that they document is that the jury makes up its mind in the courtroom and actually, if you adopt this, Brazil has the right way of doing it. In Brazil, the jurors listen to the case, they walk out and, by written ballot, they write guilty or innocent. No deliberation, and the accused is -- and the majority verdict decides. Now, Kalven & Zeisel also throw grave doubt on the whole deliberation process of the jury. They point out that the first vote of the jury out of the room determines the end vote, and they show it time and again. And, they say the deliberation process is only their arriving at a consensus and actually Louisiana says the same sorts of pressures, only more subtle, now operate to produce unanimity in a jury as operated. As this Court knows, in the Middle Ages they were locked up without food, drink, fire, or candle. As a matter of fact, they even took them by Court to the next Circuit when they went if the jurors hadn't made up their mind.
Hugo L. Black: I suppose you would argue that does not require that we hold the jury has to be locked up without food and drink?
Louise Korns: Certainly not [Attempt to Laughter] certainly not, Mr. Justice Black. They argue from that, though, Kalven & Zeisel show that the same sorts of pressure is exerted on juries now they are more subtle and psychological naturally. He points out that if -- that the minority always gives into the majority -- no, 95% of the time, the minority gives into the majority just because they lose ground and so forth and the minority never turns the majority around, never. So, what's the use of any deliberation be -- once you establish, say nine votes. Reach nine votes and come out, they are never going to turn around and acquit that man when nine of them think he's guilty. The most the accused can hope for is a hung jury.
Potter Stewart: From that jury?
Louise Korns: From that jury, right.
Potter Stewart: And then he gets a new trial and he gets a different jury?
Louise Korns: Well, right, but they get the new trial, Mr. Justice Stewart, and there are no figures to show what the rate of convictions are on the new trial.
Potter Stewart: No, I know.
Louise Korns: Some people think they are higher and some people think they are lower, but they're at least we can assume, they're going to be a certain number of convictions on a new trial. So, what does he get, but a faint hope that, on a new trial, he might get a convic -- an acquittal. His point is that, right in line of what you've told us, that once nine people are against him, he is cut from that jury, but if you require unanimity he wouldn't be because he'd get at least a hung jury--
Louise Korns: Exactly.
Potter Stewart: And then he'd get a new chance before a --
Louise Korns: Right, exactly. That's all he can hope for. There's [Attempt to Laughter] no doubt about it.
Warren E. Burger: Well, isn't there another stage in there? Isn't there another stage and that is that the nine may persuade the three so that it isn't -- there's no assurance?
Louise Korns: Right, the 95% chance that they'll persuade the 3, 95% chance, right.
Potter Stewart: That's from Kalven & Zeisel.
Louise Korns: That's from Kalven & Zeisel, right. [Attempt to Laughter]
Speaker: They didn't sign the Constitution, though, they weren't part of the --
Louise Korns: He used Kalven & Zeisel first, Mr. Justice Stewart. They base their whole case on Kalven & Zeisel. So, I've got to study Kalven & Zeisel, or else the rope is around my neck, as it were, because --
Warren E. Burger: Well, if the argument is made -- had been made by Mr. Buckley that a 9-3 verdict means there are 9 jurors partial to the prosecution. I suppose your answer to that might be that if it's a unanimous verdict of 12 then there are 12 who are partial to the prosecution.
Louise Korns: Right, exactly. Just briefly, I'd like to remind this Court of everything that is saved by a 12-man jury, I mean, a majority verdict. Although the majority--that's the second part in our brief, that although the majority verdict only ultimately affects the verdict in a tiny minority of cases because as I pointed out, they would reach unanimity and so forth, it saves time in every case. Like in this case, the jury came-in in 20 minutes. It reduces the danger of mistrial by about 2% and really, it was because of this that England -- as you read these English materials, you'll see that the Home Secretary pressed this new law because England had been having a lot of trouble with what they call “nobbling.” Nobbling is the intimidation or bribing of jurors to prevent a unanimous verdict. And, as they pointed out, it just wastes time, money, and judge power to have to spend, especially in a long case like the Manson case, supposing they had had a mistrial. Well, anyway, it just saves time, money, and judge power to have a majority verdict.
Warren E. Burger: Mrs. Korns.
Louise Korns: Yes?
Warren E. Burger: You've only got about 3-4 minutes left for the arrest point if you want to reach it.
Louise Korns: I'll do that.
Warren E. Burger: You make the election as to which you want to argue. I just wanted to alert you.
Louise Korns: So you don't want to give us any more time then.
Warren E. Burger: I think you've covered this.
Louise Korns: Alright, fine. I'll go on to the other point. Well, my other point is just that we don't see that there has been any argument at all that can be made for getting a warrant to make an arrest in a home. The home has never been a sanctuary against arrest ever. At common law what Simmons (ph) case said the privilege of the house does not run against the king, never has a home -- this is the one exception to the principle that a man's home is his castle. The one exception, it cuts right across it, is that a man -- the privilege of a man's house does not run against the king, in other words, translated --
Byron R. White: The king has to have probable cause to get in the house?
Louise Korns: Right, no doubt about it. I agree [Attempt to Laughter] with you, but you don't have to have a warrant, right. At common law, there's no doubt about it, Mr. Justice White. Arrest could be made without a warrant in a house based on probable cause. And, as a matter of fact, as a practical matter. I call this Court's attention to the fact that, in all his powers, the police make about 50,000-55,000 arrests a year. I'd say 100 or 1,000 a week with a -- well, as this Court -- I just went in to this before this Court in Vale, the length of time it takes to make out an arrest warrant, to type that probable cause to --
Thurgood Marshall: How many arrest warrants do you have?
Louise Korns: Very few, Mr. Justice Marshall. In fact --
Thurgood Marshall: Are you proud of that?
Louise Korns: No, it's just that's the only way the Court can operate -- the police can operate. They only make out arrest warrants. They never -- you see, we have an Article 213, the Code of Criminal Procedure. This is an article that all jurisdictions have. It's a codification of the common law. The federal agents, various ones, they have no broad statute like our Article 213 because they don't have general peace keeping power. But, the FBI, the narcotics agents, the United States Marshals, the Selective Service among others have the right by statute upon a showing -- when they have a reasonable cause to believe that a crime's been committed, to make an arrest without a warrant, and all jurisdictions have this law like 213 and as a practical matter, the police couldn't operate. They'd have to double the police force if they had to swear out 55,000 arrest warrants a year.
Thurgood Marshall: Do you say this was a reasonable search?
Louise Korns: No, the search is immaterial, Mr. Justice Marshall.
Thurgood Marshall: Well, I was just wondering if six men with shotguns --
Louise Korns: Well, six men always go to an armed robber's house. They do.
Thurgood Marshall: With their shotguns.
Louise Korns: Right, because he's an armed robber.
Thurgood Marshall: And who else is in there?
Louise Korns: Well, see, they went to the --
Thurgood Marshall: Did they know who else is in there? How many children were in there?
Louise Korns: Well, I don't think --
Thurgood Marshall: How many women are in there?
Louise Korns: Well, they knocked on the door. They didn't have to force their way in.
Thurgood Marshall: Are you sure they knocked?
Louise Korns: Yes, they knocked.
Thurgood Marshall: With their guns up?
Louise Korns: No, they knocked and introduced themselves and explained their reason to be there
Thurgood Marshall: Do you think Mr. --
Louise Korns: It was Ms. Johnson who came to the door.
Thurgood Marshall: Where was Mr. Johnson?
Louise Korns: It was -- Mr. Johnson was under the bed. Ms. Johnson came to the door. [Laughter] Mr. Johnson got under the bed.
Hugo L. Black: Who did you say was under the bed?
Louise Korns: Yes, they found him under the bed. The po --
Thurgood Marshall: They searched his house and found the man was hiding under the bed.
Louise Korns: Would the Court like to hear the facts of the case?
Warren E. Burger: No, I think we know the facts, Mrs. Korns.
Louise Korns: Thank you.
Warren E. Burger: Thank you.
Harry A. Blackmun: Mrs. Korns, let me ask you a question. Did -- you're not old enough and this isn't a legal question, but wasn't there a fairly popular movie a long time ago, I think it was Henry Fonda in the lead role, which had to do with a jury process?
Louise Korns: Yes, I remember that.
Harry A. Blackmun: And one man initially holding up --
Louise Korns: It was called -- I remember it.
Harry A. Blackmun: So it does happen in fiction, doesn't it?
Louise Korns: That is true, it does. I've forgotten the name of that cast.
Warren E. Burger: Thank you.
Louise Korns: Thank you.
Warren E. Burger: Thank you. The case is submitted.