Criminal Convictions by Non-Unanimous Juries

I blogged last month about my certiorari petition in Herrera v. Oregon. My argument is that the Jury Trial Clause — as historically understood, and as accepted by the Court in federal cases — requires jury unanimity for a conviction, and that following McDonald v. City of Chicago the same rule should be applied to the states. Since a lot of readers expressed an interest in the case, I thought I’d update them on what’s happening.

A. I’m delighted to say that four amicus briefs have been filed in support of our petition:

  1. One was filed by professors who have written about jury behavior, Profs. Shari S. Diamond (Northwestern), Valerie P. Hans (Cornell), Kenneth S. Klein (Cal. Western), Stephan Landsman (DePaul), Michael J. Saks (Arizona State), Rita Simon (American), and Neil Vidmar (Duke); some of them have done some of the most prominent research in the field.
  2. Another was filed by Prof. Jeffrey B. Abramson (Texas), the author of We, the Jury: The Jury System and the Ideal of Democracy.
  3. Another was filed by Oregon professors of criminal law and criminal procedure, Dean Margie Paris (U of Oregon) and Profs. Barbara Aldave, Leslie Harris, Carrie Leonetti, and Ofer Raban (U of Oregon), Laura Appelman and Caroline L. Davidson (Willamette), and Susan Mandiberg (Lewis & Clark).
  4. And the fourth was filed by the Oregon Federal Public Defender.

Many thanks to the lawyers who drafted the briefs: Prof. Ken Klein; Douglas Hallward-Driemeier, Aaron Katz, and Eugene Morgulis; Prof. Carrie Leonetti; and C. Renée Manes.

My original brief deliberately focused on the historical and doctrinal case for reading the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, as requiring jury unanimity for conviction. The amicus briefs focus chiefly on the social science evidence that favors jury unanimity, and more broadly the pragmatic arguments in favor of a jury unanimity requirement: The jury unanimity requirement protects the proof beyond a reasonable doubt requirement, prevents convictions of the innocent, promotes jury deliberation, protects members of racial and other minorities, and makes the criminal justice system more credible to the public; and it does this with only a fairly low rate of hung juries (about 5.6% nationwide). I hope the amicus briefs will persuade those who are primarily interested by the pragmatic arguments, or who are primarily interested in my historical and doctrinal arguments but worried about the pragmatic objections to those arguments.

B. The state is not filing a Brief in Opposition right now, which is generally a pretty sensible measure for respondents (the parties that won in the court below). The Court won’t agree to hear the case (by granting certiorari, often known as “granting cert”) unless it first calls for a response (such a call is often known as a “CFR”). A respondent might well wait to see whether at least one Justice will CFR, or whether the Court will just deny cert without any need for a response.

C. My hope, then, is that a Justice will indeed CFR; either a CFR or a denial of cert should happen by November 15 — naturally, I’ll keep you folks posted about that.

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