450 U.S. 953 (1981)

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U.S. Supreme Court

BLACKBURN v. THOMAS , 450 U.S. 953 (1981)

450 U.S. 953

Frank BLACKBURN, Warden
No. 80-777

Supreme Court of the United States

February 23, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Justice POWELL, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.

In 1972, respondent was tried in a Louisiana state court for possessing and distributing cocaine and heroin. Pursuant to the state law applicable at that time, the jury consisted of five members. La.Code Crim. Proc.Ann., Art. 782 (West 1967) (amended 1975). Respondent raised no objection to its size. The jury unanimously voted to convict respondent, and he was sentenced to a prison term.

More than six years later, after exhausting state remedies, respondent sought habeas corpus in Federal District Court. [Footnote 1]

Page 450 U.S. 953 , 954

Relying on this Court's decision in Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029 (1978), respondent argued that his trial violated the Sixth Amendment (applicable to the States through the Fourteenth), because a jury of five persons was constitutionally inadequate. The District Court granted the writ in reliance on Ballew, App. to Pet. for Cert. 11a, 22a-31a, and the Court of Appeals for the Fifth Circuit affirmed, 623 F.2d 383 (1980). The Court of Appeals recognized that respondent's conviction had become final long before Ballew held that five- member juries are unconstitutional. It nevertheless held that Ballew should be applied retroactively to invalidate all convictions rendered by juries of that size. [Footnote 2]

I believe that the Court of Appeals improperly applied Ballew to reverse respondent's conviction. I therefore would grant the petition for certiorari and reverse the decision of the Court of Appeals.

Three recent cases govern respondent's claim. In Ballew, supra, we held that juries in criminal cases must have at least six members to meet constitutional requirements. A smaller jury may be insufficient to " foster effective group deliberation," 435 U.S., at 232, 234, 1036 (opinion of BLACKMUN, J.), and to provide a "fair cross-section" of the community, id., at 245-1042 (WHITE, J., concurring in judgment). Our decision in Ballew was reaffirmed one year later in Burch v. Louisiana, 441 U.S. 130, 137, 1627, 60 L. Ed.2d 96 (1979), when we identified similar constitutional flaws in a conviction reached by a nonunanimous [450 U.S. 953 , 955]

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