Petitioner
Claude Davis Ballew
Respondent
State of Georgia
Petitioner's Claim
That a Georgia law providing for juries of only five persons was in violationof the right to trial by jury guaranteed in the Sixth Amendment to the Constitution, and that by depriving the petitioner of his rights, this law furtherviolated the Due Process Clause of the Fourteenth Amendment.
Chief Lawyer for Petitioner
Michael Clutter
Chief Lawyer for Respondent
Leonard W. Rhodes
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E.Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, JohnPaul Stevens, Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
21 March 1978
Decision
That by depriving the petitioner of his right to trial by jury, the state ofGeorgia had violated his Sixth and Fourteenth Amendment rights.
Significance
Ballew v. Georgia followed several significant cases regarding jury size, and helped to establish guidelines in this area. Though for centuries 12had been considered the magic number for juries, that idea was challenged inWilliams v. Florida (1970), when the Court ruled that a state could allow juries of only six persons. With Colegrove v. Battin in 1973, it extended this provision to federal courts. As Justice Powell would later writein an opinion concurring with the Court's Ballew decision, "a line has to be drawn somewhere if the substance of jury trial is to be preserved." Ballew set that line at six members, and no fewer.
Fulton County Looks Behind the Green Door
Claude Davis Ballew was the manager of the Paris Adult Theatre at 320 Peachtree Street in Atlanta, Georgia, on 9 November 1973, when two men appeared at his theatre to purchase tickets. The movie they were going to see was Behind the Green Door, a pornographic film, and the men were investigators from the Fulton County Solicitor General's Office. In order to let them in to the theatre, Ballew, as manager, had to push a button to allow them access. Following their viewing, they obtained a warrant for the seizure of the film. Later they returned to the theatre, watched the movie a second time, seized it,and arrested both Ballew and the cashier. On 26 November the investigators came back, watched the movie a third time, and secured a second warrant. The next day, they saw Green Door a fourth time and seized a second copy ofthe film.
Some ten months later, on 14 September 1974, Ballew was charged on two misdemeanor counts for
After the swearing in of the jury, however, Ballew moved that the court impanel a jury of 12, as was the custom under common law. The rules of that particular court under a variety of Georgia statutes, however, allowed it to try misdemeanor cases with juries of five. Ballew's counsel contended that since this was an obscenity trial, a jury of just five members was inadequate to assess the community's standards with regard to its definition of indecency. Furthermore, under the guarantees of trial by jury in the Sixth Amendment, and ofdue process of law in the Fourteenth, Ballew's counsel held that he should be allowed a jury of at least six members.
The judge overruled the motion, and the trial proceeded with the five-memberpanel. After 38 minutes of deliberation, they found Ballew guilty on both counts. For each of the two counts, he was sentenced to one year in jail and a fine of $1,000. The sentences were to run concurrently and the incarceration was to be suspended upon payment of the fine. At a later hearing, the court denied an amended motion for retrial.
Ballew took the case to the court of appeals, who rejected his claims. Like the Fulton County investigators before them, the judges, too, subjected the film to a thorough viewing and pronounced it "hard-core pornography" that was "obscene as a matter of constitutional law and fact." This ruling supported the conclusion of the jury that Ballew possessed the necessary scienter, or criminal intent, to be convicted. As manager of the Paris Adult Theatre, he had,among other activities, advertised the movie, sold tickets, and pressed thebutton to let customers in to the viewing area. As for the issue of the five-person jury, the court noted that in Williams v. Florida (1970), the Supreme Court had not set a constitutional minimum for the number of jurors ina panel. Instead, the lower court used the standard of Sanders v. Georgia (1976), another pornography-related case, in which the constitutionalityof a five-member jury had been upheld.
When Ballew took the case to the Supreme Court, Citizens for Decency ThroughLaw Inc. filed an amicus curiae brief urging affirmance of the lower court's ruling. One of the two men filing that brief was Charles Keating, Jr.,who in the 1980s would be associated with the savings and loan scandal, andwho in 1990 would himself be indicted. The issue of pornography, however--presumably the cause for the Citizens for Decency brief--hardly entered into theCourt's discussion of Ballew v. Georgia. As petitioner, Ballew raisedthree issues: the constitutional question regarding the jury size, the constitutional sufficiency of the instructions the jury had received regarding scienter and "constructive knowledge" of the film's contents, and the question of obscenity. Since the Court found that the five-member jury did not satisfythe jury-trial guarantee in the Sixth Amendment, however, it did not even consider the other issues.
The Court's Social-Science Approach
The Court's opinion was unanimous, though several of the justices filed concurring opinions in which they cited aspects other than those raised by JusticeBlackmun, who wrote for the Court. The petitioner had the right to a trial by jury, Blackmun wrote, a right guaranteed under the Sixth Amendment and reinforced by the Fourteenth. The right to trial by jury is further bolstered bythe Court's ruling in Duncan v. Louisiana (1968), when it found that "trial by jury in criminal cases is fundamental to the American scheme of justice." Because the maximum penalty for violating Georgia 26-2101 carried withit a sentence of more than six month's imprisonment, Ballew's could not be considered a "petty" crime--that is, a crime for which it might be reasonably said a jury was not required. In Williams, the Court had reflected on its Duncan opinion to note that trial by a jury of peers protects a defendant from "oppression by the Government."
As for the size of the jury, the Court in Williams found that the number 12 was a "historical accident, unrelated to the great purposes which gaverise to the jury in the first place." The Sixth Amendment did not require 12jurors but, in Blackmun's words, "a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community." The Court in Williams reserved judgment on whether a jury smaller than six members is unconstitutional. However, a number of legal scholars, spurred on by the questions raised in that case, conducted research on the subject. Blackmun turned to those sources to address a number of concerns.
The practice of consulting social-science evidence had long been controversial in the Court, starting with the presentation of a psychological paper as evidence in Brown v. Board of Education (1954). Still controversial whenBlackmun applied it in Ballew, he would be subjected to criticism, both from his brethren on the Court and from others.
Using a variety of studies, including Jury Verdicts (1977) by MichaelJ. Saks, a 1975 Michigan Law Review article by Richard Owen Lempert, and scores of other sources, Blackmun made five points regarding jury size. First, the data showed that larger juries were more likely to spend a longer amount of time deliberating on a case. Larger juries' collective memory of thefacts was better when it had more heads to remember all the information and asmaller jury was less able to overcome the biases of its various members. Second, he cited a number of studies which showed small juries as more likely to convict an innocent person (Type I error) whereas larger juries were more likely to let off a guilty one (Type II). These facts suggested to many researchers that the optimal jury would consist of six to eight persons. Third, theevidence seemed to show that the smaller the jury, the more likely it was torule against the defense. Fourth, smaller juries were less likely to represent minority groups: statistically, if a group constituted ten percent of thecommunity, fifty-three percent of randomly selected six-member juries would have no members of that group, and eighty-nine percent would have no more thanone. Fifth, the errors attributed to small juries, when multiplied throughout the nation as they would be if such juries became a widespread practice, would result in large numbers of incorrect judgments.
Blackmun then turned to the arguments Georgia used in its favor. First, its interpretation of Johnson v. Louisiana (1968) as establishing the Court's approval of five-person juries was "misplaced" because the Court did not consider the issue of five-person juries in that case. Second, Georgia's argument that five-member juries were sufficient to hear misdemeanor cases, if notfelony trials, was invalidated by the Court's ruling in Baldwin v. New York (1970) that the right to trial by jury was just as strong in the caseof misdemeanor as of felony. Third, Georgia's requirement that its five-member panel reach a unanimous decision did not address the issues of "meaningfuldeliberation," the jury's memory, or its ability to represent the community as a whole. Fourth, it was not enough to claim, as Georgia did, that the five-member jury represented the community simply because there was no overt effort to exclude a minority opinion or ethnic group: given the data cited earlier, it was easy to see that such exclusion could happen inadvertently. Fifth and finally, Georgia also had attempted to use empirical data, citing two studies presented in the University of Michigan Journal of Law Reform, butBlackmun questioned those particular studies, as well as the state's interpretation of these and other sources.
Blackmun devoted the remainder of the Court's opinion to Georgia's claim thata smaller jury saved it time and money. Though six members cost the state less money than 12, in that it had to pay jurors a daily stipend, the evidencedid not show that six members saved any time in the selection process. In anycase, the difference in savings for five-member juries, as opposed to juriescomposed of six people, were bound to be minuscule.
Concurrence: "A Line Has to Be Drawn Somewhere"
Ballew represented a rare instance of agreement among the nine justices on the Supreme Court, four of whom filed concurring opinions. Justice Stevens joined the Court's opinion, he said, though apparently for different reasons: "I have not altered the views I expressed in Marks v. United States," he wrote, referring to a case concerned with pornography and not jury-trial issues. Justice White wrote that a jury of fewer than six members would fail to satisfy the "cross-section requirement" of the Sixth and Fourteenth Amendments, because it would not properly represent the community. Justice Brennan, joined by Justices Stewart and Marshall, agreed with the Court but held that Ballew should not be subjected to a new trial since in his view the Georgia statute was "overbroad and therefore facially unconstitutional."
Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, agreedwith Justice Blackmun that "the line between five and six-member juries is difficult to justify." But, he wrote, "a line has to be drawn somewhere if thesubstance of jury trial is to be preserved." He expressed differences with Blackmun over issues raised in Apodaca v. Oregon (1972), a case concerned with jury unanimity. Then he came to the apparent heart of his disagreementwith Blackmun, which related to methods--specifically, his colleague's "heavy reliance on numerology derived from statistical studies"--rather than results. Not only did he consider the social-science approach unnecessary, JusticePowell questioned its wisdom and further expressed concern over the fact that the data could not be subjected to the "traditional testing mechanisms" applied to constitutional, statutory, or legal material.
Impact
Two decades after Ballew, its establishment of a six-person minimum for jury size remained. Questions about jury decisions themselves, however, have been raised often, particularly in the cases resulting from the beating ofmotorist Rodney King by Los Angeles police in 1991, and from the murder indictment of O. J. Simpson in 1994. On 9 January 1998, Michael J. Saks and Richard Owen Lempert, authors whose studies Justice Blackmun had quoted heavily inBallew, participated in an Association of American Law Schools symposium entitled "Is It Time to Replicate The American Jury?" The latter was a study undertaken in the 1950s by Kalven and Zeisel, two other researchersto whom Blackmun referred several times in Ballew. "Once again," theannouncement of the University of Iowa symposium read,
Related Cases
The Savings and Loan Scandal
After the savings and loan debacle, Congress created the Resolution Trust Corporation in 1989 to cleanup the mess. The RTC was charged with taking over more than 700 failing thrifts, and trying to refund the losses to depositors, who were stuck with the failed loans. Lincoln Savings & Loan, lost $3.4 billion, the most expensive savings and loan crash in the nation's history.
In January of 1995, the RTC closed its doors, but the fallout from the savings and loan crisis continues. The latest wrinkle is a series of lawsuits charging the federal government with breach of contract over its alleged failure to help failed thrifts rebuild through "favorable regulatory treatment." In United States v. Winstar Corp. the Supreme Court ruled that the government defaulted on its promise to the thrift. That decision generated hundreds of other lawsuits making the same charges against the government. The JusticeDepartment estimates that damages could eventually reach as high as $32 billion.
Sources
Grunwald, Michael. "Lawsuit Surge May Cost U.S. Billions; 125 Claims Allege Breach of Contract." The Washington Post, August 10, 1998.
Claude Davis Ballew
Respondent
State of Georgia
Petitioner's Claim
That a Georgia law providing for juries of only five persons was in violationof the right to trial by jury guaranteed in the Sixth Amendment to the Constitution, and that by depriving the petitioner of his rights, this law furtherviolated the Due Process Clause of the Fourteenth Amendment.
Chief Lawyer for Petitioner
Michael Clutter
Chief Lawyer for Respondent
Leonard W. Rhodes
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E.Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, JohnPaul Stevens, Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
21 March 1978
Decision
That by depriving the petitioner of his right to trial by jury, the state ofGeorgia had violated his Sixth and Fourteenth Amendment rights.
Significance
Ballew v. Georgia followed several significant cases regarding jury size, and helped to establish guidelines in this area. Though for centuries 12had been considered the magic number for juries, that idea was challenged inWilliams v. Florida (1970), when the Court ruled that a state could allow juries of only six persons. With Colegrove v. Battin in 1973, it extended this provision to federal courts. As Justice Powell would later writein an opinion concurring with the Court's Ballew decision, "a line has to be drawn somewhere if the substance of jury trial is to be preserved." Ballew set that line at six members, and no fewer.
Fulton County Looks Behind the Green Door
Claude Davis Ballew was the manager of the Paris Adult Theatre at 320 Peachtree Street in Atlanta, Georgia, on 9 November 1973, when two men appeared at his theatre to purchase tickets. The movie they were going to see was Behind the Green Door, a pornographic film, and the men were investigators from the Fulton County Solicitor General's Office. In order to let them in to the theatre, Ballew, as manager, had to push a button to allow them access. Following their viewing, they obtained a warrant for the seizure of the film. Later they returned to the theatre, watched the movie a second time, seized it,and arrested both Ballew and the cashier. On 26 November the investigators came back, watched the movie a third time, and secured a second warrant. The next day, they saw Green Door a fourth time and seized a second copy ofthe film.
Some ten months later, on 14 September 1974, Ballew was charged on two misdemeanor counts for
distributing obscene materials in violation of Georgia Code Section 26-2101 in that the said accused did, knowing the obscenenature thereof, exhibit a motion picture film entitled `Behind the Green Door' that contained obscene and indecent scenes . . .Ballew wasbrought to trial in the Criminal Court of Fulton County before a jury of fivepersons.
After the swearing in of the jury, however, Ballew moved that the court impanel a jury of 12, as was the custom under common law. The rules of that particular court under a variety of Georgia statutes, however, allowed it to try misdemeanor cases with juries of five. Ballew's counsel contended that since this was an obscenity trial, a jury of just five members was inadequate to assess the community's standards with regard to its definition of indecency. Furthermore, under the guarantees of trial by jury in the Sixth Amendment, and ofdue process of law in the Fourteenth, Ballew's counsel held that he should be allowed a jury of at least six members.
The judge overruled the motion, and the trial proceeded with the five-memberpanel. After 38 minutes of deliberation, they found Ballew guilty on both counts. For each of the two counts, he was sentenced to one year in jail and a fine of $1,000. The sentences were to run concurrently and the incarceration was to be suspended upon payment of the fine. At a later hearing, the court denied an amended motion for retrial.
Ballew took the case to the court of appeals, who rejected his claims. Like the Fulton County investigators before them, the judges, too, subjected the film to a thorough viewing and pronounced it "hard-core pornography" that was "obscene as a matter of constitutional law and fact." This ruling supported the conclusion of the jury that Ballew possessed the necessary scienter, or criminal intent, to be convicted. As manager of the Paris Adult Theatre, he had,among other activities, advertised the movie, sold tickets, and pressed thebutton to let customers in to the viewing area. As for the issue of the five-person jury, the court noted that in Williams v. Florida (1970), the Supreme Court had not set a constitutional minimum for the number of jurors ina panel. Instead, the lower court used the standard of Sanders v. Georgia (1976), another pornography-related case, in which the constitutionalityof a five-member jury had been upheld.
When Ballew took the case to the Supreme Court, Citizens for Decency ThroughLaw Inc. filed an amicus curiae brief urging affirmance of the lower court's ruling. One of the two men filing that brief was Charles Keating, Jr.,who in the 1980s would be associated with the savings and loan scandal, andwho in 1990 would himself be indicted. The issue of pornography, however--presumably the cause for the Citizens for Decency brief--hardly entered into theCourt's discussion of Ballew v. Georgia. As petitioner, Ballew raisedthree issues: the constitutional question regarding the jury size, the constitutional sufficiency of the instructions the jury had received regarding scienter and "constructive knowledge" of the film's contents, and the question of obscenity. Since the Court found that the five-member jury did not satisfythe jury-trial guarantee in the Sixth Amendment, however, it did not even consider the other issues.
The Court's Social-Science Approach
The Court's opinion was unanimous, though several of the justices filed concurring opinions in which they cited aspects other than those raised by JusticeBlackmun, who wrote for the Court. The petitioner had the right to a trial by jury, Blackmun wrote, a right guaranteed under the Sixth Amendment and reinforced by the Fourteenth. The right to trial by jury is further bolstered bythe Court's ruling in Duncan v. Louisiana (1968), when it found that "trial by jury in criminal cases is fundamental to the American scheme of justice." Because the maximum penalty for violating Georgia 26-2101 carried withit a sentence of more than six month's imprisonment, Ballew's could not be considered a "petty" crime--that is, a crime for which it might be reasonably said a jury was not required. In Williams, the Court had reflected on its Duncan opinion to note that trial by a jury of peers protects a defendant from "oppression by the Government."
As for the size of the jury, the Court in Williams found that the number 12 was a "historical accident, unrelated to the great purposes which gaverise to the jury in the first place." The Sixth Amendment did not require 12jurors but, in Blackmun's words, "a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community." The Court in Williams reserved judgment on whether a jury smaller than six members is unconstitutional. However, a number of legal scholars, spurred on by the questions raised in that case, conducted research on the subject. Blackmun turned to those sources to address a number of concerns.
The practice of consulting social-science evidence had long been controversial in the Court, starting with the presentation of a psychological paper as evidence in Brown v. Board of Education (1954). Still controversial whenBlackmun applied it in Ballew, he would be subjected to criticism, both from his brethren on the Court and from others.
Using a variety of studies, including Jury Verdicts (1977) by MichaelJ. Saks, a 1975 Michigan Law Review article by Richard Owen Lempert, and scores of other sources, Blackmun made five points regarding jury size. First, the data showed that larger juries were more likely to spend a longer amount of time deliberating on a case. Larger juries' collective memory of thefacts was better when it had more heads to remember all the information and asmaller jury was less able to overcome the biases of its various members. Second, he cited a number of studies which showed small juries as more likely to convict an innocent person (Type I error) whereas larger juries were more likely to let off a guilty one (Type II). These facts suggested to many researchers that the optimal jury would consist of six to eight persons. Third, theevidence seemed to show that the smaller the jury, the more likely it was torule against the defense. Fourth, smaller juries were less likely to represent minority groups: statistically, if a group constituted ten percent of thecommunity, fifty-three percent of randomly selected six-member juries would have no members of that group, and eighty-nine percent would have no more thanone. Fifth, the errors attributed to small juries, when multiplied throughout the nation as they would be if such juries became a widespread practice, would result in large numbers of incorrect judgments.
Blackmun then turned to the arguments Georgia used in its favor. First, its interpretation of Johnson v. Louisiana (1968) as establishing the Court's approval of five-person juries was "misplaced" because the Court did not consider the issue of five-person juries in that case. Second, Georgia's argument that five-member juries were sufficient to hear misdemeanor cases, if notfelony trials, was invalidated by the Court's ruling in Baldwin v. New York (1970) that the right to trial by jury was just as strong in the caseof misdemeanor as of felony. Third, Georgia's requirement that its five-member panel reach a unanimous decision did not address the issues of "meaningfuldeliberation," the jury's memory, or its ability to represent the community as a whole. Fourth, it was not enough to claim, as Georgia did, that the five-member jury represented the community simply because there was no overt effort to exclude a minority opinion or ethnic group: given the data cited earlier, it was easy to see that such exclusion could happen inadvertently. Fifth and finally, Georgia also had attempted to use empirical data, citing two studies presented in the University of Michigan Journal of Law Reform, butBlackmun questioned those particular studies, as well as the state's interpretation of these and other sources.
Blackmun devoted the remainder of the Court's opinion to Georgia's claim thata smaller jury saved it time and money. Though six members cost the state less money than 12, in that it had to pay jurors a daily stipend, the evidencedid not show that six members saved any time in the selection process. In anycase, the difference in savings for five-member juries, as opposed to juriescomposed of six people, were bound to be minuscule.
Concurrence: "A Line Has to Be Drawn Somewhere"
Ballew represented a rare instance of agreement among the nine justices on the Supreme Court, four of whom filed concurring opinions. Justice Stevens joined the Court's opinion, he said, though apparently for different reasons: "I have not altered the views I expressed in Marks v. United States," he wrote, referring to a case concerned with pornography and not jury-trial issues. Justice White wrote that a jury of fewer than six members would fail to satisfy the "cross-section requirement" of the Sixth and Fourteenth Amendments, because it would not properly represent the community. Justice Brennan, joined by Justices Stewart and Marshall, agreed with the Court but held that Ballew should not be subjected to a new trial since in his view the Georgia statute was "overbroad and therefore facially unconstitutional."
Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, agreedwith Justice Blackmun that "the line between five and six-member juries is difficult to justify." But, he wrote, "a line has to be drawn somewhere if thesubstance of jury trial is to be preserved." He expressed differences with Blackmun over issues raised in Apodaca v. Oregon (1972), a case concerned with jury unanimity. Then he came to the apparent heart of his disagreementwith Blackmun, which related to methods--specifically, his colleague's "heavy reliance on numerology derived from statistical studies"--rather than results. Not only did he consider the social-science approach unnecessary, JusticePowell questioned its wisdom and further expressed concern over the fact that the data could not be subjected to the "traditional testing mechanisms" applied to constitutional, statutory, or legal material.
Impact
Two decades after Ballew, its establishment of a six-person minimum for jury size remained. Questions about jury decisions themselves, however, have been raised often, particularly in the cases resulting from the beating ofmotorist Rodney King by Los Angeles police in 1991, and from the murder indictment of O. J. Simpson in 1994. On 9 January 1998, Michael J. Saks and Richard Owen Lempert, authors whose studies Justice Blackmun had quoted heavily inBallew, participated in an Association of American Law Schools symposium entitled "Is It Time to Replicate The American Jury?" The latter was a study undertaken in the 1950s by Kalven and Zeisel, two other researchersto whom Blackmun referred several times in Ballew. "Once again," theannouncement of the University of Iowa symposium read,
the jury system seems to be under wide-ranging attack. Whether many or some of these criticisms are valid and point to needed changes in the jury system or whetherthey are largely new myths, would seem to require new, large-scale, empiricalresearch on the functioning of the jury system. Has the time come for such work?
Related Cases
- Duncan v. Louisiana, 391 U.S. 145 (1968).
- Baldwin v. New York, 399 U.S. 66 (1970).
- Williams v. Florida, 399 U.S. 100 (1970).
- Johnson v. Louisiana, 406 U.S. 356 (1972).
- Apodaca v. Oregon, 406 U.S. 404 (1972).
- Colegrove v. Battin, 413 U.S. 149 (1973).
- Sanders v. Georgia, 424 U.S. 931 (1976).
The Savings and Loan Scandal
After the savings and loan debacle, Congress created the Resolution Trust Corporation in 1989 to cleanup the mess. The RTC was charged with taking over more than 700 failing thrifts, and trying to refund the losses to depositors, who were stuck with the failed loans. Lincoln Savings & Loan, lost $3.4 billion, the most expensive savings and loan crash in the nation's history.
In January of 1995, the RTC closed its doors, but the fallout from the savings and loan crisis continues. The latest wrinkle is a series of lawsuits charging the federal government with breach of contract over its alleged failure to help failed thrifts rebuild through "favorable regulatory treatment." In United States v. Winstar Corp. the Supreme Court ruled that the government defaulted on its promise to the thrift. That decision generated hundreds of other lawsuits making the same charges against the government. The JusticeDepartment estimates that damages could eventually reach as high as $32 billion.
Sources
Grunwald, Michael. "Lawsuit Surge May Cost U.S. Billions; 125 Claims Allege Breach of Contract." The Washington Post, August 10, 1998.
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