BRENNAN, J., Separate Opinion

SUPREME COURT OF THE UNITED STATES

435 U.S. 223

Ballew v. Georgia

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join.

I join MR. JUSTICE BLACKMUN's opinion insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons. However, I cannot agree that petitioner can be subjected to a new trial, since I continue to adhere to my belief that Ga.Code Ann. 26-2101 (1972) is overbroad, and therefore facially unconstitutional. See Sanders v. Georgia, 424 U.S. 931 (1976) (dissent from denial of certiorari). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (BRENNAN, J., dissenting).