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.