Groppi v. Wisconsin/Dissent Black

Mr. Justice BLACK, dissenting.

I dissent from the Court's vacation of the judgment of conviction. I agree, of course, that this appellant is entitled to trial before an impartial jury. This right is guaranteed by the Sixth Amendment and made binding on the States by the Fourteenth. Ante, at 509. Cf. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); see also Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (1947) (Black, J., dissenting).

As the Wisconsin Supreme Court suggested, the right to trial before an impartial jury can be protected in many ways: by granting a continuance until community passions subside; by challenging jurors for cause and by peremptory challenges during voir dire proceedings. But it simply cannot be said that the right to trial by an impartial jury must necessarily include a right to change of venue. It may or may not be wiser to implement the Sixth Amendment by a change of venue provision, but in my view, the Constitution does not require it. If the usual devices for protection of the Sixth Amendment right to trial by an impartial jury are insufficient, the defendant can always be given a new trial on the ground of jury prejudice.

The Court suggests that Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), controls the disposition of this case. But there we held that prejudicial publicity was so extensive that it was a denial of due process to refuse a motion for change of venue where the State had provided for venue changes as a method of ensuring an impartial jury. See La.Rev.Stat. § 15:293 (1950). Here Wisconsin has not chosen to provide that means of implementing the Sixth Amendment right in misdemeanor cases. So long as a defendant can protect his Sixth Amendment right by a motion for a new trial, I see no constitutional infirmity in the Wisconsin statute. Nor does Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), compel the majority's result. There we held that a motion for a second change of venue should have been granted despite a state statute which seemingly permitted only one change. However, we carefully pointed out that the Indiana Supreme Court had previously held as a matter of state law that the statute's literal wording did not foreclose a second change of venue. 366 U.S., at 721, 81 S.Ct., at 1641, citing State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713 (1959).

This is not a case where a State has made it impossible for a defendant to implement his right to an impartial jury trial. Wisconsin law provides for voir dire and continuances, and this appellant exercised his right to make peremptory challenges to jurors. In holding that appellant had no constitutional right to a change of venue in a misdemeanor case, the Wisconsin Supreme Court pointed out that he could raise the claim of denial of an impartial jury by a motion for a new trial in accordance with Wisconsin procedure. 41 Wis.2d 312, 321, 164 N.W.2d 266, 270 (1969). Of course it is difficult, even in a small county, to show that its population is so saturated with prejudice that no impartial jury can be selected from that group. It is likely to be especially difficult in a county as large as Milwaukee, with its population of more than one million. However difficult that may be, appellant has a right under Wisconsin law to bring forth any relevant evidence to show that the jury that tried him was not impartial. I would remand this case for a hearing on a motion for a new trial.