Duncan v. Louisiana

PETITIONER:Duncan
RESPONDENT:Louisiana
LOCATION: Plaquemines Parish

DOCKET NO.: 410
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 145 (1968)
ARGUED: Jan 17, 1968
DECIDED: May 20, 1968

Facts of the case

Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was sentenced to 60 days in prison and fined $150. Duncan’s request for a jury trial was denied.

Question

Was the State of Louisiana obligated to provide a trial by jury in criminal cases such as Duncan’s?

Earl Warren:

Number 410, Gary Duncan, appellant versus Louisiana.

Mr. Sobol.

Richard B. Sobol:

Mr. Chief Justice, and may it please the Court.

This case is here on appeal from the Supreme Court of Louisiana.

And it raises the issue that was to a logic stand assumed in the case immediately preceding, namely whether the Due Process Clause of the Fourteenth Amendment secures the right to trial by jury in state criminal proceedings.

The appellant in this case was charged in Plaquemines Parish, Louisiana with the crime of simple battery, which is defined in the Louisiana Code, as the intentional use of force or violence upon the person of another without a dangerous weapon.

This offense in Louisiana includes all batteries other than those committed with a dangerous weapon and is punishable by two years imprisonment without hard labor and a $300.00 fine.

In Louisiana, there are four categories of crimes for purposes of trial by jury.

In capital cases only, a jury of 12 all of whom must concur in a verdict is provided, that is the common law constitutional jury.

In cases in which imprisonment must be at hard labor, a 12-man jury is provided, but nine jurors are sufficient to return a verdict.

In cases in which imprisonment may be at hard labor, a five-man jury is provided and included in that category are such serious crimes as aggravated criminal damage to property which is punishable by 15 years, aggravated battery punishable by 10 years in forgery punishable —

Byron R. White:

Must the five-man jury be unanimous?

Richard B. Sobol:

Yes it must.

The fourth category and that in to which this case falls —

[Inaudible] didn’t do it the right to the sentence.

Richard B. Sobol:

No sir, no sir.

Each criminal provision —

If that’s worked hard labor and then you turn that jury job to the —

Richard B. Sobol:

Yes sir.

And whether it says may be at hard labor or must be at hard labor would determine whether it’s a five-man jury unanimous or a 12-man jury, nine of whom must concur.

The fourth category of crimes in Louisiana, and that in to which this case falls, the cases in which no provision is made in the statute for hard labor and the Constitution of Louisiana and Article 779 of the Criminal Code expressly provides that there shall be no jury in such cases.

And that category includes such serious crimes as aggravated battery resulting from the breach of the peace which is punishable by 10 years, simple battery, the crime in this case punishable by two years, and aggravated assault punishable two years.

Earl Warren:

What would you say about 10 years?

Richard B. Sobol:

There is a —

Earl Warren:

Would it be possible to send a man to jail for 10 years without a jury of trial?

Richard B. Sobol:

Yes sir, under a charge of aggravated battery resulting from a breach of the peace, I should make clear that’s not this case.

But that is —

Earl Warren:

Yes, I understand that.

Richard B. Sobol:

Yes sir, because that is a misdemeanor in Louisiana because there’s no provision in the statute for hard labor.

That is the division and I want to call that point of the Court’s attention because there’s a good deal of use of the word “misdemeanor” in a federal constitutional sense as if it means something when of course, I think it’s clear in light of this record that it does not.

Richard B. Sobol:

That the inquiry of the Court must be to the essential elements of the crime and the potential maximum imposed.

Because of the condition of Louisiana Law, therefore, there was no right to trial by jury under Louisiana Law on the charge against the appellant.

But not withstanding Louisiana Law, he filed a demand for trial by jury before trial basing his contention on the Sixth and Fourteenth Amendments to United States Constitution.

This demand was rejected by the trial judge expressly on the ground of state law and the case was tried to a judge.

Witnesses were presented on both sides; four witnesses for the prosecution and three witnesses for the defense.

There was a factual dispute as to whether a battery had been committed.

The judge resolved the factual dispute in favor of the state and found the appellant guilty.

What’s the maximum sentence to this crime?

Richard B. Sobol:

The maximum potential sentence is two years and a $300.00 fine.

He got two months and a $150.00 fine with a provision that if the fine was not paid, 20 additional days would be added.

The appellant was released on $1500.00 bond pending appellant procedures in the Supreme Court of Louisiana and in this Court.

An application for a writ of certiorari was made to the Supreme Court of Louisiana which refused to hear the case holding in a memorandum opinion appearing on page 14 of the record, that there was no error of law in the ruling complained of.

Now it is, of course, the premise of appellant’s position in this Court that simple battery as defined under Louisiana Law is a crime and not a petty offense within the meaning of the petty offense exception to the Sixth Amendment jury trial right.

We think this point is quite clear but appellee takes exception and argues extensively to the contrary, and I would like briefly to deal with that question.

The court has it seems to me fashioned three independent tests for the determination of whether a charge constitutes a crime or a petty offense.

And there are clear indications in the cases specifically D.C. against Colts, and D.C. against Clawans that anyone of these tests being satisfied would take an offense into the crime rather than the petty offense category.

The three tests alright, it seems to me the potential maximum sentence and I think Cheff against Schnackenberg, and D.C. against Clawans and Cheff’s reliance on 18 U.S.C. 1 makes clear that the Court has at least adapted the six-month rule on that question and has indicated that any offense regardless of other factors where the potential maximum is over six months would be considered a crime for the purpose of interpretation of a Sixth Amendment jury guarantee.

In fact I think the question is left open by D.C. against Clawans as to whether that maximum may not be somewhere beneath that.

In Clawans, the Court held that three months for an offense that was clearly otherwise a petty offense which was selling unstamped (Inaudible), that they said three months is not free from doubt as to whether three months is too much and reserved the question as to whether any more than that, but I think the very least Cheff makes clear that six months is the upper most maximum.

Secondly, the Court has referred particularly in D.C. against Colts to the test of whether the crime was in diabolic common law and in our brief, we discussed the common law authorities and our main brief and reply brief which we think clearly indicates that battery was an indictable offensive at common law.

And the third test is the test of Malum in se interesting for malum prohibitum and I think there can be a little doubt that the charge of intentionally using force and violence upon the person of another is malum is a crime which is malum in se within the meaning of that term.

Now in order to avoid the logic and I think the inevitable thrust of the Court’s decision in this area, the appellee has argued that Cheff against Schnachenberg has abrogated these tests and instead, has created a test which looks to the sentence actually imposed.

The argument essentially is the appellant’s right to a jury trial at the beginning of the trial depends on the sentence imposed by the Court at the end of the trial.

In response to that let me say that Cheff was an expansion of the jury trial right without meaning to get into the controversy of the preceding cases to whether that was a constitutional expansion or a supervisory power expansion.

It was an expansion and it applied to jury trial right to an area where it had not previously been applied by the Court.

I think in that background, it is hard to interpret Cheff as severely contracting the jury trial right, narrowing the jury trial right in all non-contempt cases which the Court would certainly be doing if it substituted the prior existing test for one that looks to actual sentence.

But more important than that, I think there was a practical problem in Cheff that induced the Court to look to the —

Abe Fortas:

What’s that last thing you said Mr. Sobol?

Richard B. Sobol:

I said I think it would be odd to interpret Cheff where the Court went further and applied the jury trial right in an area where it had not been applied before.

To mean that in the non-contempt area, the right would be radically constricted because a test that looks to actual sentence imposed is one which would provide even if it could be implemented, jury trial in thought fewer cases than a test based on the maximum potential.

William J. Brennan, Jr.:

And that I gather you mean, Mr. Sobol, that would have to be in the federal system.

That in fact that argument would mean what you say that in the federal system no matter how much of a sentence that the statute has permitted a maximum, if in fact the sentence imposed was something less than six months and then there was no right to jury trial.

Richard B. Sobol:

Your Honor, I believe that is the argument of the appellee.

William J. Brennan, Jr.:

Yes.

Richard B. Sobol:

Secondly, the Court was faced with a practical problem in Cheff and that there is no potential maximum sentence in contempt in federal courts.

And that if the rule was based on potential maximum sentence, the Court would be faced with a situation where it would be applying the jury trial the right to every contempt no matter how minor.

Now that was the position contended for by some members of the Court, but one could understand why the Court would want to not reach that position in Cheff.

I think the practical problem is very important there.

But I think the most important consideration about Cheff is mechanically the rule is workable in the contempt situation, because the trial judge is required to issue the rule to show cause with a citation, before the contempt, the criminal contempt proceeding begins and therefore, has occasion to determine based on his analysis of the facts presented to him whether there is a likelihood of an imposition of sentence in excess of six months.

Of course in a non-contempt regular criminal trial area, there is no occasion.

We think the rule in Cheff, if that is a rule that could not possibly work in any other area.

And we think for those reasons, Cheff is not applicable to the determination of the petty offense crime question in this case.

In sum we think that on the basis for the Court’s decision, this case is clearly a crime.

Abe Fortas:

I think it would be easier for me if you tell me what you think we ought to decide, what rule should this Court adopt?

What rules are you urging us to adopt?

Richard B. Sobol:

As to state criminal proceedings, Your Honor?

Abe Fortas:

As to this one, yes, as to Louisiana.

Richard B. Sobol:

Your Honor, the rule we are contending for is a rule that would apply the Sixth Amendment right to state criminal proceedings in its full force.

Abe Fortas:

Well what does that mean?

You seem to be arguing — you’re saying that there’s no category of petty offenses in Louisiana?

Richard B. Sobol:

There is no category of petty offenses.

Abe Fortas:

So just what — how do you suggest we describe it if we would go along with you?

Richard B. Sobol:

There is a constitutional category of petty offenses carved out by this Court.

I think it’s clear that that category is as not as clear cut and plain as it might be.

And I think if the Court is going to apply the jury trial rights to the states, the Court is obligated to make plain what the line would be.

And I would propose as a rule to adopt the rule of the Court seems to be moving to in Cheff, which is to take the definition in 18 U.S.C. 1.

And it perhaps except in extraordinary circumstance where an offense with a potential less than six months might for some reason be considered a crime, say that anything over six months would definitely be considered a crime.

Abe Fortas:

Well now, let’s see where we are then.

What you’re suggesting is that, we say that the Sixth Amendment guarantee of jury trials applies to the states.

Richard B. Sobol:

Yes sir.

Abe Fortas:

And that the dividing line which every state has to observe is the federal dividing line as stated as indicated by Cheff; namely six months potential punishment.

Richard B. Sobol:

If we can assume —

Abe Fortas:

Six months actual or six months depends?

Richard B. Sobol:

In Cheff, the Court was talking about the actual, but it was referring to the petty offense definition of the U.S.C.

Abe Fortas:

I understand that, what do you ask?

What are you referring to?

Richard B. Sobol:

Oh I think a test based on actual sentence is impossible.

I’m talking about a test based on potential maximum sentence for the crime which —

Abe Fortas:

In other words, we are to lay down a rule that’s applicable to all of the states in which we say that if a potential sentence exceeds six months, then the jury trial requirement of the Sixth Amendment has to be observed by each state?

Richard B. Sobol:

Your Honor, that’s the position we’re contending for.

But I would like to make this reservation in the right to counsel area, which I think presents similar practical problems.

The Court in Gideon did not choose to make plain at the time Gideon was decided, the lower most reach of the right and indeed, the Court has declined on subsequent occasions to make that determination clear.

I’m referring to the denial of certiorari in Winters against Beck.

I think there is a certain advantage to that procedure in an area where the Court is not fully aware, or may not be fully aware of the practical problems it may be reaching.

Judge Jones in the Connell v. Moore in the Fifth Circuit said that he sees the logic of applying the right to counsel on —

Abe Fortas:

You’re saying that number one, you think it’d be nice if we said that if we announce six-month rule is applicable to the states.

Number two, if we don’t want to be that bold, we can adopt the Gideon approach.

Richard B. Sobol:

Yes sir and I think if —

Abe Fortas:

And leave it for the future?

Richard B. Sobol:

And I think —

Abe Fortas:

Now I want to ask you another question.

Does your analysis mean that the states would have to adopt a 12-man jury system and unanimous verdict?

Richard B. Sobol:

Yes sir.

Yes sir, on that point.

Abe Fortas:

It does?

Richard B. Sobol:

Yes sir, on that point —

Abe Fortas:

In other words the Louisiana System, jury system, would have to give way to the federal system?

Richard B. Sobol:

Yes sir.

I look at the issue of scope of the decision really in two ways, if I may pursue this for a moment.

One is the question as to when there is a case to which the Court holds the Sixth Amendment jury right applies whether it earmarks the jury and I think the Court has so often held that when the Constitution uses the word jury, it means a certain thing.

Richard B. Sobol:

In Patten against the United States, the Court said “An 11-man jury is not a jury.

It’s just the same as no jury at all.”

And there is a great deal of authority which we have cited in our brief for the proposition that a jury within the meaning of the federal Constitution and we are asking that that meaning be applied to the states mean 12-man and an unanimous verdict.

Well the rational is to overrule precedents, black precedents in this Court?

Richard B. Sobol:

Yes sir.

Yes sir, I was about to reach that, that’s true.

If I may just presume it to Mr. Justice Fortas’ point one step further.

I think there is a room based on Gideon and the lower court treatment of Gideon, for the Court to wait until a misdemeanor, by that I mean a federal misdemeanor, less than a year comes before it and perhaps at that time, there will be information before the Court which — on which it could base a determination as to whether this can be handled.

I think I was persuaded, for example, by a comment of Judge Jones of the Fifth Circuit in McDonald v. Moore where he held that the right to counsel rule applies to a misdemeanor.

But just in a passing observation, he said frankly he doesn’t know how it’s going to work because in his hometown of Jacksonville, there are more JP courts than attorneys.

And they all sit on Monday morning, but he said that because of the earmarks of that particular offense, the right was applied.

I think those are problems the Court obviously has to think about.

If in New York City for example has an amicus brief before the Court in this case on this point, if in some sense mathematically, a jury could not be made available for the 12,000 cases that were tried that Mr. Leftwood refers to, I would think the Court would want to consider that in reaching a judgment.

In sum, I’m saying that I think to the extent there is room to — for caution and to wait, I think the room has to be on the depths or how farther right goes.

I don’t think based on the history of the interpretation of the jury trial right in this case and the court’s history whenever a right isn’t going to be applied to the state that it’s not the water down right but it is a full right.

That it means whatever the federal right means, I don’t think this rule applies.

Abe Fortas:

I appreciate that Mr. Sobol.

May I ask you just one other question?

I don’t want to interrupt you any more than I have to.

Do I correctly recall that somewhere in your brief, you discount the effect of the civil law tradition on the jury trial provisions that obtained in Louisiana?

Richard B. Sobol:

In our brief, in Appendix C, we make to a point that until 1898 and 1899, there was a federal 12-man unanimous verdict in Louisiana in every case.

I’m not certain about that date it maybe 1880.

But for a good substantial period after Louisiana was admitted to the Union, we made that presentation to dispel whatever weight there may be and the idea that this is an unbroken history in Louisiana of reliance on the civil law tradition.

Abe Fortas:

Yes.

Richard B. Sobol:

But to directly answer your question on law, I don’t believe I affirmably discount it but I do discount it.

Abe Fortas:

You do?

Richard B. Sobol:

Yes sir.

Abe Fortas:

You don’t think that the present system of dispensing or with jury trial — with full jury trial right is an outgrowth of the civil law system as it applied in Louisiana?

Richard B. Sobol:

I’m sorry, Your Honor, I didn’t understand the question.

Abe Fortas:

I say, you don’t believe that the present system with respect to jury trials in Louisiana is really sort of a natural growth —

Richard B. Sobol:

Yes sir.

Abe Fortas:

— of the civil law system?

Richard B. Sobol:

No, when Louisiana was admitted to the Union, the law at that time either by virtue of the Admitting Act or the constitution non-existing, there was a 12-man unanimous verdict.

That point is made I think of the briefs on both sides.

Thurgood Marshall:

Mr. Sobol, if we adopt your rule, how would that apply to the rule in many states that the drunken driver’s sentence is 30, 60 and goes up as high as nine months, jury trial?

Richard B. Sobol:

Well I imagine Your Honor —

Thurgood Marshall:

If you make just anything over six months, you mean anything over six months?

Richard B. Sobol:

Oh, yes sir!

It was over six months.

Thurgood Marshall:

You have to get jury trial —

Richard B. Sobol:

I would say that that is the outermost thrust of our position.

Thurgood Marshall:

— and the drunken driver is —

Richard B. Sobol:

In D.C. against Colts, the Court held with a 30-day maximum that this Court held, with a 30-day maximum potential penalty, the crime was so serious after a warrant the jury trial, but that is the thrust of our position, yes sir.

Thurgood Marshall:

Your idea of seriousness says this is the amount of time?

Richard B. Sobol:

I think the idea is an alternative idea which is reflected very clearly in the decisions of this Court.

Thurgood Marshall:

No.

I didn’t I understand you to say that you wanted us to adopt the limit that if the crime would get more than six months, you had have a 12-man jury?

Richard B. Sobol:

Yes sir, which would not —

Thurgood Marshall:

Regardless of what the crime was?

Richard B. Sobol:

Yes sir.

That is the reach of our position, I —

William J. Brennan, Jr.:

Well Mr. Sobol, may I ask you, I take at this case presents only the narrower question whether an offense punishable up to two years requires a jury trial?

Richard B. Sobol:

Yes sir.

William J. Brennan, Jr.:

We don’t have to decide today.

In this case at least, do we, that that means a 12-man jury a unanimous verdict that all offenses carrying more than six months?

Richard B. Sobol:

No sir.

William J. Brennan, Jr.:

We don’t have to reach any of those, do we?

Richard B. Sobol:

Definitely not, and that is the point that I was trying to make in response to Mr. Justice Fortas’ questions that I think with the precedent of the right to counsel case at Gideon, that that is the way the Court treated it there.

I think there’s a good deal of wisdom in that —

Your thesis has adopted the next logical kind of applicable step would be opted to say that the Seventh Amendment was incorporated to impose a jury trial with a $120.00 lawsuit in the state?

Richard B. Sobol:

No sir, I don’t think that’s the logic of our position because I think that the Court and the common law has placed different guarantees in connection to criminal matters than to civil matters has —

Had you incorporated the Sixth Amendment, the jury trial provision, but did that stop you from incorporating the Seventh Amendment?

Richard B. Sobol:

Yes sir.

Our position in this case certainly does not involve the logic that the Seventh Amendment necessarily follows and nor does our rationale.

We’re talking and I mean to refer that the —

I refer to petitioner.

I admit to this provision so a right —

Richard B. Sobol:

Well the —

— accept the premises of incorporation.

Richard B. Sobol:

Well the Court has said recently that the way to pick and choose is by examining the fundamental nature of the right, and whether it’s essential to a fair trial.

And it’s a due process though and not the incorporations.

Richard B. Sobol:

Well, I’m referring to the opinion of the Court in Washington v. Texas and to the opinion of the Court where in discussing the incorporation of the compulsory process provision, the Court did say that without implying, I don’t believe that every provision of the Bill of Rights applies to the states that we are — that the Court will look to the question of fundamentalness and essentiality and I think in those cases, the Court has put special weight on the criminal trial.

I think that while there is great weight to idea that what the Court has done so far in the criminal procedure area in incorporating due process — the Bill of Rights protections may well lead you to the conclusion that all the criminal procedures are incorporated, which is not necessarily our position in this case.

I think that the rule in civil cases could well be different.

I think there are different considerations which this Court has noted.

Talking about the Constitution, what provision does the Constitution says that some of these provisions, the Bill of Rights go in right standing there of the state [Inaudible]

Richard B. Sobol:

Well none says that, but the Court has interpreted the words due process in connection with applying Bill of Rights guarantee.

That’s a different concept.

Corporations have not been positive.

Richard B. Sobol:

No but the Court —

Corporation involves if there’s something in the Constitution that despite the language of the Bill of Rights limiting those protections to the federal authority, there’s something in the Constitution that breaches the Bill of Rights also [Inaudible] law enforcement into operation against the states.

My question to you is, how can you separate division of the Bill of Rights from the other [Inaudible] corporation?

Richard B. Sobol:

I would rely in answer to Your Honor’s question on the decisions of this Court which have looked to – have made a judgment as to the fundamentalness and the essentiality of the right.

What cases?

Richard B. Sobol:

Washington against Texas, Pointer v. Texas, Klopfer v. North Carolina, and I think Gideon.

Hugo L. Black:

What about Palko, and what about Twining and what about Gideon?

Richard B. Sobol:

Palko and Twining go the other way.

Hugo L. Black:

After what they could apply?

Richard B. Sobol:

They apply the same test and they apply–

William J. Brennan, Jr.:

They apply the selective test, didn’t they?

Hugo L. Black:

They did.

William J. Brennan, Jr.:

Didn’t Palko introduce the selective test?

Richard B. Sobol:

And found it not to apply, yes sir

William J. Brennan, Jr.:

To some, but as to others it sound it did apply.

Richard B. Sobol:

Yes sir, that’s correct.

William J. Brennan, Jr.:

And has the Court done anything else but that?

Richard B. Sobol:

No I don’t believe it has sir.

William J. Brennan, Jr.:

Well isn’t there a distinction between the Seventh and the Sixth —

Richard B. Sobol:

I certainly think there is a distinction between the Seventh and the Sixth.

And I think there is — that is the one example which I think the distinction is the greatest, because I think there is a great deal of room to make distinction between civil and criminal trials in applying that test of selectivity.

William J. Brennan, Jr.:

Incidentally Mr. Sobol, do you get any comfort now on the issue as you agreed with me earlier is the only one before us namely whether an offense that carries two-year minimum requires a jury trial.

Richard B. Sobol:

Right.

William J. Brennan, Jr.:

From our decision last term in Parker and Gladden?

Richard B. Sobol:

Yes sir I do.

I do.

William J. Brennan, Jr.:

Do you think we crossed best bridge in Parker and Gladden?

Richard B. Sobol:

Except for the facts of case Your Honor, I think the opinion certainly indicates that the Court has made that assumption that the jury trial right of the Sixth Amendment does apply in the state.

Byron R. White:

Except there was a confrontation point of that one?

Richard B. Sobol:

Yes sir, I don’t — that’s what I mean by the —

Byron R. White:

Didn’t reach the jury thing at all?

Richard B. Sobol:

The court needn’t have reached it, but the Court —

Byron R. White:

As a matter of fact it relied on the words that you said both?

Richard B. Sobol:

The court said both.

But the point is that because there had been so many of these decisions relating to the impartiality of a jury without referring to the Sixth Amendment right.

The use of that language I think could be interpreted and we have suggested it maybe interpreted to have applied the right.

I’d like to just pursue a matter one second more as to what is before the Court.

I do think the question of a 12-man jury in this case is before the Court, because of the condition of the Louisiana law.

If the Court would have to say there is a federal jury trial right in this case, but not made clear what right the Court is referring to in terms of the scope, the 12-man, under Louisiana law.

The next step up is a five-man jury and the case will be coming back up again.

And I think that if the appellant were to be convicted again, the Court in terms of a remand as to this case, I think should make clear what this case calls for.

Richard B. Sobol:

And in that sense I think the question of —

Thurgood Marshall:

And what about all the other men that are being tried today in Louisiana under the five-man jury, would that be all set aside too while we are at it?

Richard B. Sobol:

I don’t think you have to set them aside.

No sir.

I think the retroactivity cases of this — the Court has handed down or in several recent areas would indicate that there is a good deal of room not to apply the case retroactively.

I think that —

Byron R. White:

On what basis?

Richard B. Sobol:

Well the Court in Stovell and in the Johnson v. New Jersey has said that — as I understand those decisions that because the right that it’s being defined does not go to the central core of the fact finding process the right need not be applied.

I do want to say I —

Byron R. White:

Well then why in the selective approach would you say this is a very fundamental matter?

Richard B. Sobol:

Well I wanted to get —

Byron R. White:

If that’s to go to the heart of the trial, it doesn’t affect the integrity of the criminal trial.

Richard B. Sobol:

Well I think it does.

And all I was saying in response to the —

Byron R. White:

Well then how come your argument wouldn’t be retroactive?

Richard B. Sobol:

I was answering Mr. Justice Marshall in a manner which I said precedence in the Court that I think could be used, I believe that like the Gideon case that the lack of jury trial is central to the fact finding process.

Our position before the Court, Mr. Justice White would be, that because it is central to the fact finding process and because some practical considerations go into the reach of the rule where I think that it could be developed before the Court that the question would not involve the release of many good long sentence prison.

Byron R. White:

There are other factors in the retroactivity case besides the integrity of the —

Richard B. Sobol:

Yes sir.

Byron R. White:

— process, would you —

William J. Brennan, Jr.:

Reliance?

Richard B. Sobol:

Reliance to the number of settled cases.

William J. Brennan, Jr.:

Reliance on the — Maxwell and Dowd and the other cases that —

Richard B. Sobol:

Yes sir and I think that one of the considerations here is certainly after the cases in which there have been no jury, the penalties have been on the low side of the scale and you don’t have men who’ve been tried many, many years ago or men convicted of what the Court would consider very heinous crime and it would have to be retried.

But I do think and in response to Mr. Justice White and can I clear my answer to Mr. Justice Marshall, I do believe that the logic of the central fact finding function would apply here.

There are practical considerations which I think the Court should meet on a record where those questions are fully briefed and presented to the Court as it has in the —

William J. Brennan, Jr.:

I still don’t understand Mr. Sobol why you think we have to reach the 12-man jury.

As I understood your exposition of the system, I gather there’s a 12-man jury in certain types of cases?

Richard B. Sobol:

Yes sir.

William J. Brennan, Jr.:

Is it a 12 with a nine vote —

Richard B. Sobol:

Except in capital cases, it’s 12 with a nine vote where hard labor must be imposed with —

William J. Brennan, Jr.:

Yes and there’s a five-man in certain category cases?

Richard B. Sobol:

Right.

William J. Brennan, Jr.:

And here there’s no jury with the crime at all?

Richard B. Sobol:

Right.

William J. Brennan, Jr.:

Now if we were to send this back without deciding, well what the number should be on the jury, how are we to know that Louisiana might not apply the 12-man?

Richard B. Sobol:

It would involve a radical change in Louisiana law to apply the 12-man in this case.

William J. Brennan, Jr.:

Well wouldn’t it require — I know, but I take it the legislature of Louisiana would have then to make up its mind what kind of jury it was going to provide, wouldn’t it?

Richard B. Sobol:

Yes sir.

William J. Brennan, Jr.:

It would take a legislative action, wouldn’t it?

Richard B. Sobol:

It would take unless this Court said that consistent with due process appellant couldn’t be tried other than by a 12-man jury.

William J. Brennan, Jr.:

Well I appreciate that but I’m just — this isn’t just clear to me why we have to reach this question at this time?

Richard B. Sobol:

Well let me answer it this way.

I don’t think it’s indispensable to reaching a determination.

I think the state would be entitled to know what it’s required to do to meet the standard laid down by the Court.

And I wouldn’t argue this in a state where the only two kinds of jury when no jury or 12-man unanimous jury because of the condition of Louisiana Law, I think it’s reasonable to assume that.

William J. Brennan, Jr.:

Yes but we do have other states, Mr. Sobol, Oklahoma for example as I understand from these appendixes.

Richard B. Sobol:

Yes sir.

William J. Brennan, Jr.:

They have a five-man jury for certain types of offenses.

Richard B. Sobol:

Up to one year.

William J. Brennan, Jr.:

Well, six whatever it is —

Richard B. Sobol:

Yes sir.

William J. Brennan, Jr.:

Whether a three quarter vote of six, I think that means five out of six or something and there are other states too that have these things, are they not?

Richard B. Sobol:

That is true.

Abe Fortas:

Mr. Sobol, is the thrust of your argument mean that in the segregation case, let’s say where the Court has entered an order for school desegregation or what not, and there’s disobedience of that order that the subsequent contempt proceeding would have to be — that have be a jury trial?

Richard B. Sobol:

This is a federal court?

Abe Fortas:

Well, I’m taking both ways.

I’m taking it from the state court.

Richard B. Sobol:

In Louisiana, there aren’t too many segregation — desegregation on what is coming out of state courts but I —

Abe Fortas:

Well let’s take a state —

Richard B. Sobol:

Right, I think the —

Abe Fortas:

The state court that had issued such an order?

Richard B. Sobol:

I do not believe anything in our case would indicate that result, no sir.

Abe Fortas:

I’m not asking about anything in your case.

I’m asking about the reason —

Richard B. Sobol:

I don’t think the reason —

Abe Fortas:

You have vigorously advocated here.

Richard B. Sobol:

I meant to answer that way sir.

I don’t believe the reasoning of my case applies to the —

Abe Fortas:

Tell me why.

Richard B. Sobol:

Because I think the question of the Court has struggled with in the contempt cases is a different question and that is whether a contempt is a crime.

And without expressing any opinion on that and I think it’s a close question, I don’t think anything we’re talking about involves getting into that question.

What we have here is a crime.

If the Court should determine in the Bloom Case that contempt is a crime and that I think these cases have to be fit together.

I have to win first, I think, except for your honest theory of return of theory of Bloom and then in —

Abe Fortas:

Come on.

Give me an answer to this question, will you?

What is your view as to the thrust of your argument with respect to a contempt order entered by a state court in a segregation case?

Richard B. Sobol:

The thrust of my argument is that it does not reach criminal contempt, because the Court has not determined whether a criminal contempt is a crime within the meaning of the constitutional standard.

Abe Fortas:

Suppose the Court should determine?

Richard B. Sobol:

If the Court —

Abe Fortas:

Should determine that it is a crime for purposes of jury trial and then what?

Richard B. Sobol:

Then I think that the thrust in my position is that the jury trial right would apply.

Abe Fortas:

The jury trial would have to be given in the segregation cases in the contempt proceeding in the state segregation case.

Richard B. Sobol:

Yes, unless some rule was fashioned by the state which established a concept of petty contempts with a six month maximum by which an alternative procedure —

William J. Brennan, Jr.:

Is that contempt of a segregation order a criminal contempt?

Richard B. Sobol:

No sir.

My experience is they have all been civil.

William J. Brennan, Jr.:

No matter how far your argument goes, it doesn’t reach civil contempt?

Richard B. Sobol:

Yes sir, that is correct.

Hugo L. Black:

Do you know of any constitutional reason why people charged with contempt entitled to a jury?

That right shouldn’t be accorded to segregation cases as well as all the others?

Richard B. Sobol:

No sir, I don’t.

Byron R. White:

Well Mr. Sobol, if the Court said nothing at all about the size of the jury whether it need be unanimous or not and simply said that in this case a jury trial would — a jury trial was required?

There are other cases in this Court that have already said what the jury has to be.

Richard B. Sobol:

Yes sir.

Byron R. White:

And so the only reason for reaching this question in this case is that if you wanted to vary from the old cases and I think that you don’t want to do that?

Richard B. Sobol:

No sir, I don’t.

That is correct.

Thank you, sir.

Earl Warren:

Very well Mr. Sobol.

Ms. Wolbrette.

Dorothy D. Wolbrette:

Wolbrette.

Earl Warren:

Ms Wolbrette.

Dorothy D. Wolbrette:

May it please the Court.

The facts of this case are exceedingly simple.

The simple facts as shown by the record make it clear that appellant who was 19 years old, even according to his own testimony, made an intentional bodily contact on the victim who was 14 years old without his consent.

The simple facts of this case show that the appellant committed a simple battery of misdemeanor.

That he was given a fair trial and that he was sentenced to 60 days in the Parish Jail, and a $150.00 fine.

The 60-day sentence for a simple battery brings this case squarely under this Court’s decision in Cheff versus Schnackenberg, if the Sixth Amendment jury trial right applies to the states.

Cheff held that the imposition of an actual sentence of six months or less is constitutionally permissible under Article III and the Sixth Amendment without a trial by jury if the inherent nature of the offense charged is that of a petty offense and Mr. Justice Brennan, that answers your question about the federal system.

It would have to be a serious, I mean, it would have to be a petty — the nature of the offense would have to be petty.

Therefore, it could not involve any crime in a federal system with more than a year penalty because if you have more than a year penalty, you go to the federal — you may go to the federal penitentiary and this Court has held that that is an infamous offense in the federal system.

Hugo L. Black:

Are you saying that you’ve got to wait about determining whether you have a right to jury trial under the cases tried to see how much the judge contributes?

Dorothy D. Wolbrette:

Yes.

Hugo L. Black:

In other words —

Dorothy D. Wolbrette:

That’s what Cheff said.

I’m not saying it, Cheff said it.

Hugo L. Black:

In other words, you can’t know at the beginning whether you’re entitled to a jury trial or not.

Dorothy D. Wolbrette:

Well, Your Honor —

Hugo L. Black:

(Voice Overlap) you got to wait and see what the judge does with him?

Dorothy D. Wolbrette:

There’s no difference Your Honor, as between contempt and other crimes there are crimes with indefinite sentences.

Hugo L. Black:

I’m not talking about contempt or anything else?

Dorothy D. Wolbrette:

Yes.

Hugo L. Black:

Because as I understand this —

Dorothy D. Wolbrette:

Well I’m not saying it this is what Cheff held.

I’m telling you what Cheff held.

Hugo L. Black:

But as I understand it, maybe I’m wrong.

You were saying, is that regard to contempt in murdering?

Dorothy D. Wolbrette:

Any crime —

Hugo L. Black:

Anything else —

Dorothy D. Wolbrette:

That the rule which Cheff put up is what you just said. Now New York does this very thing and so does everyone (voice overlap)

Hugo L. Black:

What I’m asking you is you’re arguing to us that a defendant cannot learn whether he’s entitled to a jury or not until he’s tried by a judge, and convicted, and given less than a year?

Dorothy D. Wolbrette:

Well, I am merely stating to you what this Court in its latest decision on this particular point held and that’s Cheff.

This is exactly what Cheff held.

And as I started to point out to you, New York uses this very system.

Hugo L. Black:

But wouldn’t that be a —

Dorothy D. Wolbrette:

For its misdemeanor.

Hugo L. Black:

Wouldn’t that be a very silly ruling in a court?

Dorothy D. Wolbrette:

New York doesn’t think so and England doesn’t think so.

England uses this very system for simple batteries.

Hugo L. Black:

Do they use it to determine what you can give them when you start to try them, or what you have given them after the judge decides?

Dorothy D. Wolbrette:

They use it to determine — what happens is, you go into the inferior court, the judge listens to some of the testimony.

If he decides it from the circumstances, in his opinion it’s a more serious offense than should be tried summarily without a jury.

He then sends it out to a higher court where he’s tried by indictment with the jury.

That’s the system.

Hugo L. Black:

Do you agree that this man could’ve been given two years?

Dorothy D. Wolbrette:

In the Paris Jail, of course.

How can I deny it?

That’s the penalty.

Hugo L. Black:

And yet you say that he could’ve been given two years.

And he get nevertheless, you want a judge as so, he could’ve been only been given a year or six months?

Dorothy D. Wolbrette:

Six months, that’s the test which —

Hugo L. Black:

Because the judge happened to give him that?

Dorothy D. Wolbrette:

Well Your Honor, Cheff did not consider the potential sentence at all.

The penalty for criminal contempt in the federal courts is unlimited.

And as you pointed out in your dissent in Cheff, federal courts have been known to give sentences for criminal contempt as long as four years.

So you had the same problem there.

Now under Cheff, my appreciation of the – yes, Your Honor.

Earl Warren:

May I ask you first, do you have double jeopardy clause in your Constitution?

Dorothy D. Wolbrette:

Yes, yes sir we do.

Earl Warren:

Well how then could a judge partially try a man for a crime of that kind and then conclude that the punishment would have, or ought to be more than six months, and then send it to a grand jury for indictment?

Dorothy D. Wolbrette:

Well he would not have determined guilt at that point and it wouldn’t be double jeopardy.

Earl Warren:

Well I thought when a man was placed on trial, witnesses had been summoned against him that he was in jeopardy?

Dorothy D. Wolbrette:

Well we obviously haven’t reached that problem yet.

But I’m sure if we did, I believe that the Court would say that this is not what is determined to be double jeopardy.

I’m sure New York has solved that problem.

Now under Cheff, the test recognized that —

Earl Warren:

Well now, on what theory would they say that?

I thought it was common knowledge every place that when a man was placed on trial and witness is sworn against him that he was in jeopardy?

Dorothy D. Wolbrette:

Well frankly Your Honor, I haven’t researched that point.

I’m sure that New York has met that problem because that is the system that they use if we will refer to the amicus brief of New York you will see that this is what New York uses.

And I’m sure that there would be some cases then in New York State.

And if you want, I’ll submit you a supplemental memorandum on that particular point, but you’re asking me something that I haven’t really researched.

Earl Warren:

Alright.

Dorothy D. Wolbrette:

Now under Cheff, the test recognized for determining of petty offense are one, the actual sentence imposed is six months or less and two, the character of the offense charged must be petty.

This prosecution meets both tests of Cheff because the sentence actually imposed was 60 days and the offense charged simple battery as defined in Louisiana is a petty offense.

Simple battery in Louisiana is the intentional use of force of violence upon the person of another without the consent of the victim, and without a dangerous weapon.

Intent to injure, actual bodily injury and the use of a dangerous weapon are not elements of simple battery.

Consent to the victim is a defense so that the identical conduct with the victim’s consent is not a crime in Louisiana.

Earl Warren:

Suppose the judge had given him seven months here instead of two, would your argument be the same?

Dorothy D. Wolbrette:

Well of course.

Earl Warren:

I beg your pardon?

Dorothy D. Wolbrette:

Well I mean, I would not argue that I fit it under Cheff now.

Earl Warren:

What would you put it on?

Dorothy D. Wolbrette:

What would I put my argument on?

Earl Warren:

Yes.

Dorothy D. Wolbrette:

Well of course I’m going — then I would go into my — Oh!

I know what you’re talking about.

Then you’re talking about with the two-year maximum potential penalty, if it was seven months, would the —

Earl Warren:

Seven months instead of two, yes.

Dorothy D. Wolbrette:

Yes, with my two-year maximum penalty of my statute then deprive him of due process, or would it require a jury.

And of course it would not, because you’re not —

Earl Warren:

It would not you say?

You say it would not deprive him in a jury.

He ought to have a jury trial?

Dorothy D. Wolbrette:

No.

It would not require a jury, certainly not.

The potential maximum sentence of two months would not require a jury.

Earl Warren:

No I said if it was seven months that he had given him instead of the two.

Dorothy D. Wolbrette:

Yes.

Earl Warren:

What would your position be?

Dorothy D. Wolbrette:

My position would be I would not be under Cheff, because the actual sentence would be more than six months but my position would be, that he would still not require a jury.

Earl Warren:

What basis would you shift to then from Cheff?

Dorothy D. Wolbrette:

Well then I would have to look at the maximum.

That’s what I was trying to say.

I skipped a step on it.

I would have to look at the maximum.

Well in addition to many other factors I’d have to look at the inherent nature of the offense, but I would also look at the maximum potential sentence.

Now as pointed out by Frankfurter & Corcoran in their article which has been cited by this Court and recognized, there are many — there have been many —

Hugo L. Black:

You mean adopted by this Court?

Dorothy D. Wolbrette:

Cited.

Hugo L. Black:

What do you mean by recognized?

Dorothy D. Wolbrette:

Used as a basis for your opinion in District of Columbia versus Collins.

Cited.

Dorothy D. Wolbrette:

Cited, and used as authority.

There are many —

Abe Fortas:

Why did you stop with cited [Laughter]?

Dorothy D. Wolbrette:

Well, it is certainly recognized as an authoritative work on what is a serious crime, what was a serious crime at common law, and then the colonies at the time of the adoption of the Sixth Amendment.

For example, they point out that Orsen (ph) was not triable by jury.

That it carried a penalty of seven years transportation or one and half years at hard labor, robbery, and indefinite confinement at hard labor an innkeeper allowing tippling an indefinite confinement, vagabondage a severe whipping in confinement pending sessions, producing illegitimate children, an indefinite confinement, robbery, one month at hard labor and a severe whipping.

Now today, a severe whipping would be considered cruel and inhuman punishment.

Vagrancy 31 lashes.

In New York, any offense less than grand larceny would take an indefinite penalty.

And Your Honor, I have a whole bunch of them listed.

I really would rather not take anymore time, but I —

Thurgood Marshall:

Did you leave out the one for hanging cattle thieves?

Dorothy D. Wolbrette:

[Attempt to Laughter] I don’t think he put that in sir, I don’t recall that one.

New York, three years for vagrancy was cited in the Clawans Case.

So I say that even if you look at the maximum potential penalty, our man still does not require a jury trial.

He does not go to the penitentiary.

He goes to the Parish Jail which is a substantial difference.

Now —

Thurgood Marshall:

What difference is there between the Parish Jail and the penitentiary?

Dorothy D. Wolbrette:

There’s a lot of difference.

You have civil disabilities for one thing that result when you’re convicted of a felony.

Thurgood Marshall:

What else?

Dorothy D. Wolbrette:

What’s that?

Thurgood Marshall:

What other difference is there?

Dorothy D. Wolbrette:

Well at hard labor, what are the differences?

Dorothy D. Wolbrette:

It’s the difference in treatment and the difference in hard labor that things that a person has to do.

And it is certainly a more disgraceful thing to go to the penitentiary considered that way in a community than to be sentenced to Parish Jail.

May I —

Earl Warren:

Did I understood Mr. Sobol to say that some of these crimes that were without hard labor called for punishment up to 10 years?

Dorothy D. Wolbrette:

Oh no sir!

That is absolutely wrong.

That is aggravated battery resulting from breach of the peace which is Section 34.1 of the Louisiana Criminal Code.

Now aggravated battery resulting from breach of the peace is not a misdemeanor, it is a felony.

The source Act of Section 34.1 is Act 69 of 1960 and under that Act, aggravated battery resulting from breach of the peace is a felony.

It is not a misdemeanor.

Earl Warren:

That all must tried with a jury?

Dorothy D. Wolbrette:

We’ve never had a prosecution under it.

But as a felony, it would have to be tried by a jury.

Earl Warren:

Never had an aggravated battery in Louisiana?

Dorothy D. Wolbrette:

We’ve had aggravated battery as defined in Section 34 which is general type of aggravated battery, but we have never —

Earl Warren:

What is the maximum punishment for that?

Dorothy D. Wolbrette:

Ten years.

Earl Warren:

How about did —

Dorothy D. Wolbrette:

And that’s trial by jury, of course.

Earl Warren:

Well that’s what I asked.

Dorothy D. Wolbrette:

Yes, You asked about the one – I’m sorry I thought you were talking about the one that he referred to as a misdemeanor.

There are two aggravated batteries.

There’s Section 34 which is aggravated battery which requires the use of a dangerous weapon and then there’s 34.1 which is aggravated battery resulting from breach of the peace which requires bodily injury and they are both felonies.

Abe Fortas:

Well Mr. Sobol said that 34.1 does not provide for hard labor, and therefore it is not a felony under Louisiana law.

Is that incorrect?

Dorothy D. Wolbrette:

That is incorrect because the Source Act is Section is Act 69 of 1960.

And the Source Act provides that it is — that that particular crime is a felony.

Abe Fortas:

And there is no provision for hard labor?

Dorothy D. Wolbrette:

No, but it’s a felony.

Abe Fortas:

But it is —

Dorothy D. Wolbrette:

Oh! Definitely it is a felony, yes.

Abe Fortas:

Do you disagree with Mr. Sobol that generally where the Louisiana law does not provide for hard labor, the defined crime is not a felony?

Dorothy D. Wolbrette:

Generally, yes.

Abe Fortas:

But this is an exception.

Dorothy D. Wolbrette:

But this is an exception, because it specifically provides that it is a felony in the Source Act.

Abe Fortas:

What is the maximum term of imprisonment provided under any of the criminal statutes that is not a felony?

Dorothy D. Wolbrette:

The maximum — that is not a felony?

Abe Fortas:

Yes.

Dorothy D. Wolbrette:

There’s one for three years which is wearing a hood in the streets except on Mardi Gras.

[Laughter] It takes three years and it’s a misdemeanor.

Abe Fortas:

How much do they get for wearing it on Mardi Gras?

Dorothy D. Wolbrette:

Nothing, nothing.[Laughter]

Your party said you don’t wear one on Mardi Gras.

Your Honor, we say that simple battery is a trivial offense enacted under the state’s police power.

It’s not too offensive to the community’s moral purposes.

It’s not too close to society’s dangers and these are tests which have been used by this Court in determining what is a minor offense.

We say that there is a substantial difference between simple battery or misdemeanor in Louisiana, and aggravated battery which is a felony.

Aggravated battery in Louisiana involves serious conduct and as a felony, it is triable by jury.

It’s punishable in the penitentiary, and it necessarily involves the laws of important Civil Rights such as the right to vote.

Simple battery involves minor conduct and of course, it’s a misdemeanor.

And the conviction of a misdemeanor does not involve the laws of any Civil Rights at all and it is not punishable in the penitentiary.

Historically, conduct constituting simple battery has been treated as a petty offense, not only in Louisiana, but also throughout the United States and in England as authorities in our brief show.

The Frankfurter & Corcoran Article which was cited, in the District of Columbia versus Clawans mentions assault and battery as a petty offense triable without a jury.

Throughout the United States, simple battery is a typical petty offense as our brief shows.

In England, when the Sixth Amendment was adopted, simple battery was a minor offense triable without indictment and without a jury, as our brief demonstrates.

Abe Fortas:

Mrs. Wolbrette, are you arguing to us that regardless of the term or circumstances of imprisonment that the determining factor is a nature of the offense?

Dorothy D. Wolbrette:

No, I’m not.

I’m arguing that that is one of the important factors.

Abe Fortas:

Alright, now what’s the other one?

Dorothy D. Wolbrette:

Well the Court has looked at the maximum potential sentence and that has been modified in Cheff by saying that when the actual sentence is six months or less.

Abe Fortas:

Are you saying that anything up to three years that if the nature of the offense is wearing of a hood or a simple battery and if the maximum period of confinement should be three years, then you don’t have to have a jury trial?

Dorothy D. Wolbrette:

Well I am saying the Court doesn’t have to go that far.

The only point to which the Court has to go on this case is the two-year maximum.

Abe Fortas:

I know, but I invite you to assist us in terms the theory because we do have to consider that what of course is involved here.

Dorothy D. Wolbrette:

Well as pointed out in D.C. versus Clawans, there was a three-year maximum penalty for vagrancy in New York.

Abe Fortas:

How about five years?

Suppose it was five years, what would the difference with that?

Dorothy D. Wolbrette:

I really couldn’t answer that, Your Honor.

I’ve just considered really two years and possibly three years.

I don’t know of that five years.

Abe Fortas:

What’s your principle for what you’re arguing?

That’s what I fail to get here.

Do you say (voice overlap)

Dorothy D. Wolbrette:

I tried to apply — go ahead.

Abe Fortas:

Do you say that under no circumstances, should the federal constitution operate so as to require a state to provide a jury trial?

Or, are you saying that under some circumstances, the federal constitution does require a state hold a — to grant jury trial?

Dorothy D. Wolbrette:

I’m saying that the state may modify the scope of jury trial and that Louisiana has modified the scope of jury trial within whatever limits maybe provided by the Constitution.

Abe Fortas:

Suppose it’s a capital offense?

Dorothy D. Wolbrette:

Well the question there would — it takes two parts.

Could a judge try a capital offense fairly?

Yes he could.

Abe Fortas:

I’m not asking you that.

I’m asking you whether the federal constitution, whether there’s anything in the federal constitution that would make it unlawful under our system of government, or a state to provide for capital — for a trial of capital case without a jury?

Dorothy D. Wolbrette:

Your Honor, Louisiana provides for the trial of a capital case with a jury.

Abe Fortas:

Yes ma’am.

Is that your total answer ma’am?

I’m trying to find out what your view of the principle is (voice overlap)

Dorothy D. Wolbrette:

Well I tried to answer you but you said that that wasn’t the answer.

Abe Fortas:

But if that’s your answer to it, then that’s alright.

Dorothy D. Wolbrette:

I said that the test is a fair trial.

Dorothy D. Wolbrette:

Now, can a judge give a fair trial in a murder case?

Then I say, of course a judge can give a fair trial in a murder case.

Now of course, if you want to look at history, I don’t believe there is any precedent for a capital crime being tried or not much precedent for a capital crime being tried without a jury.

So on the basis of history it is quite possible that we could say that it would not be proper to try without a jury.

But I’m saying that a state has the right to modify the scope of jury trial as Louisiana has done in this case.

I’m also saying that because the decision of the decision in Cheff, this Court need not reach the constitutional question and hopefully will decide this case on the narrower ground that appellant’s prosecution was for a petty offense, which is exempted from the Sixth Amendment jury trial under the Cheff decision.

But in the alternative, if this Court deems it necessary to reach the constitutional question of applicability to the states of the Sixth Amendment jury trial right, then we maintain that the Sixth Amendment does not apply directly to the states.

In deciding this issue, we call this Court’s attention to Patton versus the United States and the consequences Mr. Justice Brennan, of requiring all the states to try crimes by 12-man unanimous jurors.

This would be a necessary incident of a crime with Sixth Amendment directly to the states.

Since the Barron decision in 1833, this Court has held in an unbroken line of decisions that the Bill of Rights applies only against the federal government and not against states.

Byron R. White:

Are those decisions anymore unchangeable than the ones that the defendant here asked us to overrule about the applicability of the Sixth Amendment?

Dorothy D. Wolbrette:

Are those changed — are those?

Byron R. White:

Well the courts also held in a line of cases that the jury trial provision doesn’t apply to the states at all.

Dorothy D. Wolbrette:

That’s right.

But what I’m pointing at, I’m going from general to specific if you will allow me.

The fact that certain rights have been found fundamental and applicable to the states through the Fourteenth Amendment does not mean that all are.

The fact that certain restrictions are placed on the federal courts does not mean that the same restrictions must be imposed on state courts.

Unlike the Due Process Clause of the Fourteenth Amendment, the Sixth Amendment jury trial right is not an abstract declaration of the rights of man based on fundamental fairness.

The Sixth Amendment jury trial right deals only with the preservation of a concrete institution, the common law 12-man jury as it existed in 1787.

Under the Sixth Amendment change in the common law jury is impossible.

It isn’t reasonable to argue that such a rigid unchangeable institution as the 18th Century common law jury in which procedural reform is impossible represents a fundamental right which is necessary to a fair trial in state court.

Jury trial exists in federal court by reason of Article III and the Sixth Amendment.

Jury trial exists in state court by reason of state law.

The only vehicle for applying the federal jury trial right to the states is the Due Process Clause of the Fourteenth Amendment, and due process does not demand trial by jury.

The test under due process is whether a jury is essential to a fair trial.

Contrary to appellant’s arguments, recent decisions of this Court —

Earl Warren:

What kind of trial would that be Ms. Wolbrette, where a jury trial is essential to a fair trial?

Dorothy D. Wolbrette:

What kind of trial would it be?

As I say —

Earl Warren:

You say it’s only applicable to cases where a fair trial would be — would —

Dorothy D. Wolbrette:

No, no I’m saying that —

Earl Warren:

— would require a jury.

Dorothy D. Wolbrette:

No sir, I’m saying that the only test under due process is whether a jury trial is essential to a fair trial.

Earl Warren:

When would that be?

Dorothy D. Wolbrette:

Oh, you mean in any — I don’t think it would be necessary in any case as far as a fair trial is concerned, I believe that a judge certainly can try any defendant fairly.

Contrary to appellant’s argument, recent decisions of this Court have not undermined the validity of Maxwell versus Dow.

In following the rationale of Hurtado versus California, Maxwell versus Dow applied the test of fundamental fairness to determine that due process required neither an indictment nor a jury trial in state prosecutions for robbery.

This is the same test which is applied by this Court today, and that is, is the right which has been denied essential to a fair trial which is inherent in due process.

In the case at bar, it would be necessary to find that failure to a court appellant a jury trial necessarily deprived him of a fair trial.

Neither logic nor history supports a holding that failure to a court appellant a jury trial deprived him of a fair trial.

There is no rational basis for declaring that a judge cannot dispense with the same fairness and impartiality which could be expected of a jury acting under a judge’s instructions both as to the law and the facts.

Certainly, it can’t be logically argued that it was fair in District of Columbia versus Clawans for federal judge without a jury to impose a 60-day sentence on the accused for selling property without a license, but that it was not fair in the case at bar for a state judge without a jury to impose a 60-day sentence for simple battery.

Certainly it can not be —

Potter Stewart:

We’re not talking about dispensing justice of the generality.

We’re talking about the particular function that a jury has of finding the facts of — and the theory if that one was supposed as behind that 12 of a defendant’s peers are perhaps better equipped as fact finders than a single judge.

Not with a generality of dispensing justice.

Dorothy D. Wolbrette:

But Your Honor, you’re talking about desirability.

Desirability is not a case for constitutional mandate.

Potter Stewart:

I’m trying to ask you whether you think that it’s sufficient for you to argue as you’re now doing in terms of the general administration of justice, because the jury, the jury has a specific function to play traditionally in that administration of justice and that is in the role of a fact finder.

Dorothy D. Wolbrette:

Well, and the judge has a traditional role to play in that of a fact finder.

Judges find facts all the time in equity —

Potter Stewart:

Well not under the Sixth and Seventh Amendment.

It’s the jury that’s the fact finder unless it’s waived.

Dorothy D. Wolbrette:

But our point is that the Sixth Amendment — you’re talking about Sixth Amendment, I’m talking Fourteenth and I’m talking fairness under the Fourteenth.

You’re talking Sixth Amendment which applies only to the federal courts.

And I’m talking fairness under the Fourteenth.

Abe Fortas:

And they’re summing in the Magna Carta about juries?

Dorothy D. Wolbrette:

[Attempt to Laughter] Your Honor, Magna Carta did not guarantee jury trial to anybody.

Abe Fortas:

I think I have a very pretty good idea what Magna Carta says, but in some reference to the jury trial?

Dorothy D. Wolbrette:

Under Magna Carta, the citizen was entitled to the protection of either judgment of peers or the law of the land.

Dorothy D. Wolbrette:

Now this meant that parliament had the right by positive law to diminish the general right of jury trial for specific offenses.

Parliament used this right extensively by providing for the summary disposition of many different offenses without juries.

The English tradition of the general right of jury trial —

Abe Fortas:

Yes ma’am, but that does indicate that at least there were some old fellows in the 13th Century who thought that the jury was a fairly valuable institution.

Dorothy D. Wolbrette:

And the law of the land too.

Abe Fortas:

And maybe times have changed in this rather so solely —

Dorothy D. Wolbrette:

Your Honor they —

Abe Fortas:

— then I certainly don’t press the point that that’s dispositive, but there is a kind of tradition, or folklore whichever you want to call it, to the effect that the jury is an important institution in a man who searched for freedom and fairness.

Dorothy D. Wolbrette:

It’s variable.

We don’t deny.

Abe Fortas:

(Voice Overlap) ma’am?

Dorothy D. Wolbrette:

We don’t deny the value of jury trial.

We just say that it may be variable, but it is not essential.

Abe Fortas:

Maybe I misunderstood the thrust from your argument.

Dorothy D. Wolbrette:

Oh no, indeed!

After all, we provide for more serious offenses.

So we couldn’t deny the value.

We just say the value and desirability is not constitutional mandate.

Now —

Abe Fortas:

But you’re still prepared as a theoretical matter to say that the Fourteenth Amendment’s guarantees would permit a state to try a capital offense and sentence a person to execution without a jury?

Dorothy D. Wolbrette:

That is not essential to the holding of this case, Your Honor.

Abe Fortas:

I know that, but isn’t that the thrust of your argument?

Dorothy D. Wolbrette:

I’m saying that possibly history could give you an apt, because as a practical matter, I mean as a matter of history, I can’t think of many capital crimes that have ever been tried without jury.

But this is not so in offenses of a less serious nature like simple battery.

And as I’m trying to explain to you, the English tradition under the Magna Carta of the general right of jury trial existing side by side with legislative power to provide summary, non-jury process for a specific offenses was brought from England and adopted by the colonies, and used whenever the circumstances called for it.

In the years before the adoption of the Sixth Amendment, almost on more than half the colonies had constitutions of the Magna Carta type.

And they interpreted this language as allowing legislative diminution of the right to jury trial.

Moreover, the 1780 constitution of Massachusetts and the 1784 constitution of New Hampshire allowed a trial by jury to capital or infamous offense.

I see the red light is on, Thank you.

Earl Warren:

Very well.