Ballew v. Georgia

436 U.S. 962 | SCOTUS | 1978

Dissenting Opinion

Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioner, convicted of distributing obscene materials under Ga. Code § 26-2101 (1975), for a second time asks this Court to decide the question:

“Whether . . . jury instructions on scienter allowing a finding of ‘constructive knowledge’ in an obscenity case are sufficient to meet . . . constitutional minimum standards. . . ?” Pet. for Cert. 2.

In Ballew v. Georgia, 435 U. S. 223 (1978) (Ballew I), which involved petitioner’s earlier conviction under § 26-2101, we granted certiorari to consider, but did not reach, precisely this issue. See Pet. for Cert. in Ballew v. Georgia, O. T. 1977, No. 76-761, p. 2. I see no reason to suppose that this issue is any less worthy of consideration on certiorari now than it was when we accepted it in Ballew I. For this reason, I would grant certiorari. See also Sewell v. Georgia, 435 U. S. 982 (1978) (Brennan, J., dissenting from dismissal of appeal); Teal v. Georgia, 435 U. S. 989 (1978) (same); Robinson v. Georgia, 435 U. S. 991 (1978) (dissenting from vacation of judgment and remand). Barring this, I would grant this petition and summarily reverse. See Ballew I, supra, at 246 (opinion of Brennan, J.); Sanders v. Georgia, 424 U. S. 931 (1976) (dissent from denial of certiorari).

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Lead Opinion

Ct. App. Ga. Certiorari denied.