ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
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
to convict in non-capital 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.*fn1 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
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:
"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
All three factors favor only prospective application of the rule stated in Duncan v. Louisiana. Duncan held that the States must respect the right to jury trial because in the context of the institutions and practices by which we adopt and apply our criminal laws, the right to jury trial generally tends to prevent arbitrariness and repression. As we stated in Duncan, "We would not assert, however, that every criminal trial -- or
or any particular trial -- held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury." 391 U.S., at 158. The values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial. Second, States undoubtedly relied in good faith upon the past opinions of this Court to the effect that the Sixth Amendment right to jury trial was not applicable to the States. E. g., Maxwell v. Dow, supra. Several States denied requests for jury trial in cases where jury trial would have been mandatory had they fallen within the Sixth Amendment guarantee as it had been construed by this Court. See Duncan v. Louisiana, supra, at 158, n. 30. Third, the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases in those States not until now accepting the Sixth Amendment ...