[ Footnote * ] Together with No. 941, Carcerano v. Gladden, Warden, on petition for writ of certiorari to the Supreme Court of Oregon.
In post-conviction proceedings petitioners unsuccessfully challenged the constitutional validity of their convictions in the state courts - petitioner in No. 941 contending that it was unconstitutional for the trial court to have instructed the jury (under a state constitutional provision applicable to noncapital cases) that it could return a guilty verdict by less than a unanimous vote; and petitioner in No. 559 contending that he was unconstitutionally denied a trial by jury when he was tried by a state court for criminal contempt, adjudged guilty, and sentenced to three concurrent one-year terms. Held: This Court's decisions of May 20, 1968, in Duncan v. Louisiana, 391 U.S. 145 , holding that the States cannot deny a request for jury trial in serious criminal cases, and Bloom v. Illinois, 391 U.S. 194 , holding that the right to jury trial extends to trials for serious criminal contempts, do not apply retroactively; and since petitioners' trials were instituted before that date the Court does not reach the issues presented by petitioners.
Certiorari granted; No. 559, 382 F.2d 557, and No. 941, affirmed.
Anna R. Lavin for petitioner in No. 559.
John J. Stamos and Elmer C. Kissane for respondent in No. 559.
Robert Y. Thornton, Attorney General of Oregon, and David H. Blunt, Assistant Attorney General, for respondent in No. 941.
Petitioner Carcerano was convicted of armed robbery and sentenced, on May 11, 1962, to life imprisonment. The Oregon Constitution, Art. I, 11, permits a jury [392 U.S. 631, 632] to convict in noncapital cases if 10 of the 12 jurors support conviction. The Oregon Supreme Court affirmed petitioner's conviction. 238 Ore. 208, 390 P.2d 923, cert. denied, 380 U.S. 923 . In 1967, petitioner sought collateral relief under Oregon's post-conviction statute. The sole ground relied upon was that the State and Federal Constitutions were violated when the jury was told it could return a verdict of guilty even though the members did not unanimously favor that verdict. This issue had not been raised by petitioner on his direct appeal. The Oregon Supreme Court denied relief.
Petitioner DeStefano was found in criminal contempt of an Illinois court and sentenced to three concurrent one-year terms. 1 After affirmance by the Illinois Supreme Court and denial of certiorari by this Court, 385 U.S. 989 , petitioner unsuccessfully sought state collateral relief and then filed a petition for habeas corpus in the District Court for the Northern District of Illinois. Petitioner's contention was that he was unconstitutionally denied trial by jury. Both the District Court and the Court of Appeals held that the Constitution did not require jury trial for state criminal contempt proceedings.
In Duncan v. Louisiana, 391 U.S. 145 , we held that the States cannot deny a request for jury trial in serious criminal cases, and in Bloom v. Illinois, 391 U.S. 194 , that the right to jury trial extends to trials for serious criminal contempts. Duncan left open the question of [392 U.S. 631, 633] the continued vitality of the statement in Maxwell v. Dow, 176 U.S. 581, 586 , that the Sixth Amendment right to jury trial includes a right not to be convicted except by a unanimous verdict. Both Duncan and Bloom left open the question whether a contempt punished by imprisonment for one year is, by virtue of that sentence, a sufficiently serious matter to require that a request for jury trial be honored. These two issues posed in Nos. 941 and 559 must be considered at this time only if the decisions in Duncan and Bloom apply retroactively. We hold, however, that Duncan v. Louisiana and Bloom v. Illinois should receive only prospective application. Accordingly, the denials of collateral relief to petitioners must be affirmed regardless of whether, for cases to which the rules announced in Duncan and Bloom apply, the Fourteenth Amendment requires unanimous jury verdicts and affords a right to jury trial for criminal contempts punished by imprisonment for one year.
In Stovall v. Denno, 388 U.S. 293, 297 , the Court stated the considerations that affect the judgment whether a case reversing prior doctrines in the area of the criminal law should be applied only prospectively:
The considerations are somewhat more evenly balanced with regard to the rule announced in Bloom v. Illinois. One ground for the Bloom result was the belief that contempt trials, which often occur before the very judge who was the object of the allegedly contemptuous behavior, would be more fairly tried if a jury determined guilt. Unlike the judge, the jurymen will not have witnessed or suffered the alleged contempt, nor suggested prosecution for it. However, the [392 U.S. 631, 635] tradition of nonjury trials for contempts was more firmly established than the view that States could dispense with jury trial in normal criminal prosecutions, and reliance on the cases overturned by Bloom v. Illinois was therefore more justified. Also, the adverse effects on the administration of justice of invalidating all serious contempt convictions would likely be substantial. Thus, with regard to the Bloom decision, we also feel that retroactive application is not warranted.
For these reasons we will not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. Louisiana and Bloom v. Illinois. 2 The petitions for writs of certiorari are granted and the judgments are affirmed.
[ Footnote 2 ] We see no basis for a distinction between convictions that have become final and cases at various stages of trial and appeal. See Stovall v. Denno, supra, at 300-301.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, dissenting.
I am of the view that the deprivation of the right to a trial by jury should be given retroactive effect, as I thought should have been done with comparable constitutional decisions. See Gideon v. Wainwright, 372 U.S. 335 ; Douglas v. California, 372 U.S. 353 ; Linkletter v. Walker, 381 U.S. 618, 640 (dissenting opinion); Johnson v. New Jersey, 384 U.S. 719, 736 (dissenting opinion); Stovall v. Denno, 388 U.S. 293, 302 (dissenting opinion). [392 U.S. 631, 636]