If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9-3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)
Interestingly, Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law. And the McDonald majority (this part of Justice Alito’s opinion did get five votes) didn’t have anything good to say about Apodaca:
[T]he Court [has] abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
[Footnote: There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon; Johnson v. Louisiana. But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials. Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.]
The Court has in recent years refused to reconsider Apodaca (see, e.g., Lee v. Louisiana, discussed here). But I think McDonald ought to embolden lawyers to try again. Standing alone, a request to revisit Apodaca might well have struck the Justices as not worth focusing on. The issue is relevant only in the same two states that were involved in Apodaca and its companion case — Oregon and Louisiana — since those are the only ones that provide for nonunanimous juries. There is a precedent on it, however fractured the opinion might be. The Justices might have been reluctant to revisit the incorporation debates in this odd context.
But now, there’s a fresh precedent pretty solidly condemning the Apodaca approach of incorporating a right against the states, but only partly. Justice Thomas is especially on the record against selective incorporation generally, but the other four conservatives are on the record against partly incorporating a clause in a way that leaves it less applicable to states than to the federal government. And even the McDonald dissenters might be willing to revisit Apodaca; only Justice Stevens generally supported a partial-incorporation approach in McDonald, and he will now be off the Court.
What’s more, preserving for appeal a challenge to the nonunanimous jury provisions shouldn’t be that hard, and any eventual certiorari petition can borrow heavily from the past ones. And if you have a case in which this is teed up, and don’t want to do the certiorari petition, just e-mail me — I might well be able to step in myself.