Half a Jury Is Better Than None

Twelve has long been a magic number. There were twelve tribes of Israel, twelve Apostles, twelve months in the Julian calendar and twelve signs of the zodiac. In U.S. federal courts, criminal defendants are entitled to twelve jurors, and most states follow the same practice. Last week the Supreme Court ruled that the tradition of twelve jurors may be ignored by the states.

At issue was the case of one Johnny Williams, who was sentenced to life imprisonment after being found guilty of robbery by a six-man jury in Florida --one of the 13 states that provide juries as small as five members in many noncapital cases. Williams argued that he was entitled to twelve jurors. By a vote of 7 to 1, though, the court last week affirmed Williams' conviction and upheld Florida's right to use six-member panels.

Common Sense. Speaking for the court, Justice Byron White noted that the Sixth Amendment does not specify twelve jurors. Generations of jurists--including the Supreme Court in decisions going back as far as the 19th century --logically assumed that, since the founders drew the constitutional requirement of jury trial from British common law, they also intended to preserve the common law's tradition of twelve. But that tradition is a mere "historical accident." White wrote. Since the days of the Franks and Normans, juries have ranged in number from 66 to four, and legal thinkers have seldom found much justification for the magic dozen.

According to White, size has no bearing on the "essential feature" of a jury, which is to interpose "the common-sense judgment of a group of laymen" between the state and the accused. Said White: "The performance of this role is not a function of the particular number of the body which makes up the jury."

Hasty Hoist? A troubled Justice John M. Harlan concurred in the result, but not for White's reasons. Harlan has long resisted the court's insistence that virtually every standard in the federal Bill of Rights must be applied to state criminal proceedings. In his view, the states should indeed be free to have six jurors if they wish, but the Sixth Amendment should be clearly construed to make the Federal Government stick to twelve. The majority opinion, he argued, undermines the constitutional basis for juries of any size, particularly in federal cases. "If twelve jurors are not essential, why are six?" he asked.

Harlan also noted that the Constitution does not spell out the rule that juries must be unanimous in order to convict. As a result, he suggested, that rule, too, may be called into question by White's refusal to preserve common-law tradition. Said Harlan: "The uncertainty that will henceforth plague the meaning of trial by jury is itself a sufficient reason for not hoisting the anchor to history."

A related decision last week showed less respect for the states' jury standards and threatened to worsen court congestion. In New York City's criminal courts, there is now a backlog of about 500,000 cases. The backlog would be even worse if a unique statute did not forbid jury trials in these courts. Instead, such cases are tried by speedier single judges or, if the defendant wishes, by three-judge panels. Robert Baldwin, charged with "jostling" (pickpocketing), was convicted by a single judge and sentenced to one year in prison. He appealed, relying on a two-year-old Supreme Court ruling that the

Sixth Amendment's guarantee of jury trials for defendants accused of "serious" crime applies to states. Just what crimes are "serious," Baldwin asked the court. The answer from a divided bench: Any defendant facing a sentence of more than six months is entitled to a jury.

Justice Harlan, well aware of the city's problems, was appalled by the decision, which overturned Baldwin's conviction. In his dissent, Harlan warned that the result may increase the city's court delays by "a factor of eight." Moreover, the present courtrooms do not even have jury boxes. Since the state legislature may be loath to pay for adequate courtrooms and increased personnel, it .looks as though New York City may have to dismiss more cases, encourage other defendants to waive jury trials, or rely on the legislature to cut the penalty for many offenses to six months or less.

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