Johnson v Louisiana
406 US 356 (1972)
Conference of March 5, 1971
(Notes of Douglas/Brennan)

BURGER:  On the jury issue, it is a novel question.  Once I thought that if a two-thirds vote was coupled with a two- or three-hour interval, it would be different.  But I have discarded that idea.  Reasonable doubt is not a valid argument here.  Unanimity was not required at common law--no one really knows its origins.  Majority verdicts were common prior to the Constitution.  Madison's failure to get a unanimous verdict is relevant, and suggests that the standard was left to the states.  The British system uses majority verdicts.  States can do this if they want to do so.  I affirm.

BLACK:  I affirm.  Since unanimity was not required when the jury requirement was written into the Constitution, it is not required now.  A majority of one would be too few.

DOUGLAS:  I reverse.  Unanimous verdict plus reasonable doubt are my grounds.

BRENNAN:  I reverse.

STEWART:  Under the Sixth Amendment, I would reverse.  Under the Fourteenth Amendment, I would affirm.  If the Sixth Amendment is incorporated by the Fourteenth and applies across the board, I would have to reverse.  And since Duncan is not retroactive, I am more confused than ever.  I am inclined to reverse on the ground that the Sixth Amendment requires a unanimous jury.

WHITE:  You won't get around the retroactivity issue.  Duncan is not retroactive, so I say that the Sixth Amendment does not apply in this case.  Therefore, I would affirm.

MARSHALL:  I affirm.  The only qualification of the Sixth Amendment's guarantee of jury trial is "impartial," not unanimous.  The state can cut the number from twelve to nine, but not to one.  There is no difference between twelve and five or six or nine.

BLACKMUN:  This is not an easy case.  I am bothered by the "arrest" point.  On the jury point, if the Oregon act falls, this one does, too.  Louisiana grades offenses, requiring unanimous verdicts in death cases.  I am inclined to affirm, with a question mark.

Conference of January 14, 1972  [The case was held over to the next term and reargued.  Powell replaced Black and Rehnquist replaced Harlan.]

BURGER:  On the main issue it was close.  This was not a well-argued case.  The question of unanimity was not settled at the time of the Constitution.  Madison failed to get a requirement for unanimous verdicts, and this leaves the question to the states.  I affirm.

DOUGLAS:  I reverse.  The federal rule is unanimity, and the state rule is the same.

BRENNAN:   I reverse.

STEWART:  Under our decisions, this is a Fourteenth Amendment case.  This is pre-Duncan, which is not retroactive.  The Fourteenth Amendment required a representative jury for one hundred years.  Those cases are academic if the majority can decide a case, I reverse.

WHITE:  A non-unanimous jury will not have an impact on "beyond a reasonable doubt."  These cases are more symbolic than actual.  I affirm.

MARSHALL:   On the first point, I would leave it alone--it is a can of worms.  On the jury issue, I go on to reasonable doubt and the jury point.  Here the jury was out twenty minutes.  It must be a unanimous jury.  I reverse.

BLACKMUN:  Reasonable doubt does not equate with a unanimous verdict.  I affirm.

POWELL:  I would like to reserve my vote for a week.  In Virginia, there is a unanimity rule in the Constitution.  I did not think in Virginia that the Fourteenth Amendment would bar changing a unanimous verdict, though I am for states experimenting, but I was against Virginia changing its rule.  The federal standard requies unanimity, but the Fourteenth Amendment does not.  I have not been able to sort out all of my views.  I am inclined to go with the Fortas opinion in Duncan, but I want it to go over.

REHNQUIST:   I find nothing in the Fourteenth Amendment that requires unanimous verdicts.  I affirm.