Criminal Convictions by Non-Unanimous Juries

I just filed (with a great deal of help from my Mayer Brown LLP colleagues) a petition for certiorari (Herrera v. Oregon) asking the Court to decide whether nonunanimous criminal convictions are unconstitutional. My sense is that it isn’t too legalese, and the issue — and the historical discussion — might be of some interest to people, but of course I’m the wrong person to impartially evaluate that. If you want to read the petition, start on PDF p. 16, so you skip the table of authorities, the jurisdictional items, and the like.

Here’s the basic issue: 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.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with this year’s McDonald v. City of Chicago decision. (McDonald calls such an approach “watered-down” incorporation.) In fact, in Apodaca, only one Justice — Justice Powell — concluded that the Jury Trial Clause required unanimity in federal trials but that this provision shouldn’t be incorporated against the states. The other eight would have applied the Jury Trial Clause the same way both to federal and state trials, but four said (incorrectly, in my view) that it didn’t require unanimity in either and four said it required unanimity in both. Justice Powell was the controlling vote, and that’s how the partial incorporation result was reached.

I’d be particularly interested in talking to people whose organizations might be inclined to file amicus briefs on this. (Amicus briefs will be due “30 days after the case is placed on the docket” — Oct. 9 plus a day or two, given the docketing delays.) My view is that amicus briefs are even more helpful at the petition stage than at the merits stage, since the big challenge with any such case is to persuade the Court that this is an issue that deserves the Justices’ attention. So if you might be interested, please drop me an e-mail at

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