Williams v. Florida/Dissent Marshall

Mr. Justice MARSHALL, dissenting in part.

I join Part I of the Court's opinion. However, since I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life, I dissent from the affirmance of his conviction.

I adhere to the holding of Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that '(b)ecause * *  * trial by jury in criminal cases is fundamental to the American scheme of justice *  *  * the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendment's guarantee.' And I agree with the Court that the same 'trial by jury' is guaranteed to state defendants by the Fourteenth Amendment as to federal defendants by the Sixth. 'Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice' * *  * the same constitutional standards apply against both the State and Federal Governments.' Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969).

At the same time, I adhere to the decision of the Court in Thompson v. Utah, 170 U.S. 343, 349, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), that the jury guaranteed by the Sixth Amendment consists 'of twelve persons, neither more nor less.' As I see it, the Court has not made out a convincing case that the Sixth Amendment should be read differently than it was in Thompson even if the matter were now before us de novo-much less that an unbroken line of precedent going back over 70 years should be overruled. The arguments made by Mr. Justice Harlan in Part IB of his opinion persuade me that Thompson was right when decided and still states sound doctrine. I am equally convinced that the requirement of 12 should be applied to the States.