While we may take the right to trial by jury as a given these days, it wasn’t all that long ago that it wasn’t so. It wasn’t until December 21st, 1968, the Supreme Court declared that the sixth amendment right to trial by jury applied to the states. Prior to Duncan v. Louisiana, states where free to deny jury trials for most criminal charges. In such cases, the defendant would be brought to trial before a judge who would act as the fact finder for the case and determine guilt. While such proceedings are not uncommon these days, defendants are free to elect between a jury trial, or waive that right to have a bench trial before a judge in most cases.
The Duncan Case
The Duncan case was a product of a different era. It is important to keep in mind that in the mid 1960’s racial tension where incredibly high across the United States, and particularly in the deep South during the civil rights era. Just over a decade earlier, the Supreme Court had issues the unanimous judgment in Brown v. Board of Education of Topeka, integrating public schools. The Court had further decided 7- 2 Boynton v. Virginia, integrating public transportation. Finally, The Court had issued the bombshell unanimous judgment Heart of Atlanta Motel Inc. v. United States fully integrating all private and public buildings and accommodations.
The South had responded to these judgments by adopting a strategy of “Massive Resistance” using the state courts, and state legislatures to actively oppose the spread of civil rights to African Americans. One of the common ways states used the tools of government to oppress African Americans where through the criminal justice system.
States such as Texas, Louisiana, and Missouri had laid the foundation for what would be become our countries Prison industrial complex. These states primarily used the criminal justice system to arrest African American and Latino men, incarcerate them, and then sell their labor for profit to private businesses under a scheme known as “The convict lend-lease system” which had striking similarities to state sanctioned slavery. Famous examples of convict slave labor in Texas include the Texas Capital Building, and the fortune of Sugarland Texas, and the Imperial Sugar Company.
One of the ways southern states would facilitate easy conviction would to be to deny the right to a trial by jury, and instead only allow for bench trials with judges who would personally or politically profit by selling these men into the system. With this context in mind, the case of Duncan becomes clear.
In October 1966, Gary Duncan, a 21-year-old African American man was driving down a Louisiana Highway in Plaquemines Parish when he saw two of his cousins being harassed by a group of older white youths. Duncan noted the boys where pushing and yelling at his cousins. Duncan’s parish had only recently been integrated, and racial tensions between black and white students where very high, and sometimes escalated into violence. Duncan pulled his car over near the group, got out of the car, walked around the vehicle and opened the passenger door. He then said “Okay, well get in the car, and I’ll take you home.” Duncan’s cousins comply and enter the vehicle as the group of white youths surround Duncan. Duncan then touched one of the boys on the shoulder and said “Go run along and go home.” The crowd left, and Duncan returned to his car.
Little to Duncan’s knowledge, a school board member named Herman Landry watched the incident from across the road phoned the police. Mr. Landry had strongly resisted the integration of the perish school district and was good friends with the perish Judge Leander Perez. Judge Leander Perez ran Plaquemines Parish, and had even gotten the state constitution amended to give him, and his family exclusive control of the local perish government. Judge Perez was also excommunicated from the catholic church in 1963 due to an incident where he tried to physically stop the integration of a catholic school. He phoned the Perish D.A Leander Perez Jr, who was Judge Perez’s son, and reported Duncan for assaulting the group of white youths. Duncan was arrested two days later and charged with misdemeanor battery, facing two years in prison.
Duncan obtained council from the “Lawyers’ Constitutional Defense Committee” in New Orleans, and was shortly thereafter bailed out of jail. However, Duncan’s lawyers noticed something odd about the battery statute under which Duncan had been charged. Under the Louisiana Constitution at the time, a citizen was only entitled to a jury trial for capitol offenses, and crimes which carried a term of imprisonment of over five years. Thus, Duncan would be required to have a bench trial before the Parish judge whose son had brought the charges against him.
At trial, Duncan requested a jury and was promptly denied. The bench trial lasted less than ten minutes, and Duncan was found guilty, and sentenced to sixty days in jail, and a $100 fine. Duncan then appealed his case to the State appeals court, where he argued that the Supreme Court case of Patton v. United States which had guaranteed the right to a jury trial for federal courts applied to Louisiana via the fourteenth amendment due process and equal protection clause. Duncan’s argument failed on appeal, and would later fail at the Louisiana Supreme Court.
Duncan filed for a writ of certiorari from the United States Supreme Court in late 1967 and oral arguments where held January 17, 1968. During arguments, the State of Louisiana argued that the tenth amendment reserved the right of states to decide when and how juries are used in misdemeanor cases. Duncan again argued that the sixth amendment right to trial by jury in criminal cases applied to the states via the fourteenth amendment.
In December 1968, the Supreme Court returned a 7 – 2 judgment in favor of Duncan. The Majority followed Duncan’s reasoning that the fourteenth amendment did incorporate the sixth amendment against the states, thereby guaranteeing the right to trial by jury. The two concurrences agreed with the majorities reasoning but expressed reservations about the judgment noting that the courts holding did not address what crimes trigger the right to trial by jury. Such concerns would later be addressed in Baldwin v. New York holding that the right to trial by jury is triggered by at least one charge carrying a maximum sentences of six months or more confinement.
Interestingly, the concurrence by Justice Black and Douglas noted that jury trials allow for jurors to answer to a higher aim of justice and further safeguard against government overreach and unjust laws. This comment has been taken to refer to concept of jury nullification.
Duncan had won his case, and in the process, had guaranteed a fundamental constitutional right for all of us. The Supreme Court reversed Duncan’s conviction and remanded the case for a new trial. In the meantime, while the case had wormed through the state and federal courts, the national attention had destroyed the stranglehold the Perez family had over Plaquemines Parish. Following an impeachment, Judge Perez lost his position as parish judge, his son was removed as DA, and a new judge was appointed.
Duncan was brought before the parish court again, however this time Duncan did not request a jury trial, he requested a bench trial. Within five minutes, Duncan’s Lawyer had convinced the judge that the prosecution of Duncan had been malicious and the judge dismissed the charges against Duncan. Duncan walked out of court a free man, and left a legacy on the American legal system.
The right to trial by jury is a fundamental right of our criminal justice system. Thanks to Duncan, and the tireless work of his lawyers, that right is now one we may all enjoy.
 Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968)
 Brown v. Bd. of Educ., 344 U.S. 1, 73 S. Ct. 1 (1952)
 Boynton v. Virginia, 364 U.S. 454, 81 S. Ct. 182 (1960)
 Heart of Atlanta Motel, Inc. v. United States, 231 F. Supp. 393 (N.D. Ga. 1964)
 Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. , 2010. Print.
 Perkinson, Robert. Texas Tough: The Rise of America’s Prison Empire. New York: Metropolitan Books, 2010. Print.
 Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South’, Verso Press, 1996, p. 3
 Litwack, Leon F. Trouble in Mind: Black Southerners in the Age of Jim Crow, (1998) p. 271
 Alvin J. Bronstein, Representing the Powerless: Lawyers Can Make A Difference, 49 ME. L. Rev. 1, 5-7, 12-13 (1997)
 Patton v. United States, 281 U.S. 276, 50 S. Ct. 253 (1930)
 USCS Const. Amend. 14
 USCS Const. Amend. 10
 USCS Const. Amend. 6
 Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886 (1970)
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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301. www.ggglawfirm.com