The Nixon Radicals

As a candidate in 1968, Richard Nixon attacked the Supreme Court for "hamstringing the peace forces in our society and strengthening the criminal forces." When chance gave him the extraordinary opportunity of making four court nominations within three years, Nixon firmly moved to change things. After he named Lewis Powell and William Rehnquist last October, he seemed on the verge of gaining a "Nixon majority." And last week, as the court moved into its final flurry of decision making for the term, two rulings demonstrated that the balance has now tipped toward the "peace forces" on Warren Burger's court.

The rulings both involved efforts by prosecutors to make it easier to get indictments and convictions.

JURY VERDICTS. Despite the prevailing practice of requiring jury verdicts to be unanimous, that rule is not spelled out in the Sixth Amendment guarantee of a jury trial. A few states permit verdicts by majority, and the court was reviewing an Oregon provision that accepts a 10-2 vote and a Louisiana law that allows 9-3 decisions. These two states' laws were challenged by defendants who argued that the split votes meant they had been convicted without due process of law. Unanimity is required by constitutional tradition, ran one of their arguments, and its absence violates the requirement that guilt be proved beyond reasonable doubt.

But by a 5-4 majority, which included all the Nixon appointees, the court approved majority verdicts for state criminal trials, at least in noncapital cases. Justice (and onetime deputy U.S. attorney general) Byron White wrote that although unanimity is required in federal and most state courts, it is "not of constitutional stature," because "unanimity does not materially contribute to the [jury's] exercise of common-sense judgment." Furthermore, "disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority, after having considered the dissenters' views, remains convinced of guilt." Justice Powell provided the crucial fifth vote, but on a partially varying theory. To him, the Sixth Amendment did command unanimity, but he felt the standard applied only in federal courts and was not "fundamental" enough to "deprive the states of freedom to experiment with variations."

The four dissenters had such a variety of objections that they all filed opinions. Said Thurgood Marshall: "The reasonable-doubt rule establishes that the prosecutor must overcome all of the jury's reasonable doubts," which is hardly the case when he "has tried and failed to persuade [dissenting] jurors." Potter Stewart raised the issue of how a divided jury might split; now, he said, "nine jurors can simply ignore the views of their fellow panel members of a different race or class." William Douglas argued that the loss of unanimity means that "if a necessary majority is immediately obtained, then no deliberation at all is required . . . relieving jurors of the duty to hear out fully the dissenters." He pointed out that one of the verdicts before the court had been reached in 41 minutes. In light of the court's acceptance two years ago of juries with fewer than twelve members, Douglas also wondered whether the future might bring "3-to-2 or even 2-to-l convictions." That seemed unlikely, for Harry Blackmun, concurring with the majority, said he would have "great difficulty" approving a 7-5 verdict.

IMMUNITY. The Fifth Amendment guarantees that no one can be "compelled to be a witness against himself," but there has long been an important exception. Grand juries, courts and certain government agencies have been able to compel testimony by using the threat of a contempt sentence, after a witness is granted immunity from prosecution for all matters discussed. In 1970 the Nixon Administration persuaded Congress to enact a narrower immunity provision--a step quickly followed by at least a dozen states--assuring a witness immunity only from use of his testimony itself and of any evidence derived from it. If sufficient evidence could be found that did not develop from a witness's protected statements, he could still be prosecuted for the crime about which he testified.

Ruling on cases growing out of draft-evasion and organized-crime investigations, Justice Powell announced 5-2 decisions upholding the new procedure. He said that such limited immunity provides just as much protection as the Fifth Amendment, because "it prohibits the prosecutorial authorities from using the compelled testimony in any respect." To make sure that the prosecution does not cheat, Powell said there is an "affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony."

Justice Marshall was not persuaded.

"Even a prosecutor acting in the best of faith cannot be certain that somewhere in the depths of his investigative apparatus, often including hundreds of employees, there was not some prohibited use of the compelled testimony."

As the court continues cleaning up its backlog of 71 cases, including such major issues as capital punishment and wiretapping, it will presumably continue on the course set last week. And in supporting the shift in favor of prosecutors, the Nixon court has served notice that despite conservatives' arguments that judges should confine themselves to "strict construction" of existing law, the new majority will feel as free as the Warren court did to re-interpret the law as it sees fit. Justice Douglas pointed out that irony in one of his dissents last week, when he said that the new majority of conservatives was undertaking a "radical departure from American traditions."

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