Archive | Non-Unanimous Criminal Verdicts

I regret to say that the Court has denied my petition for certiorari challenging Oregon’s practice of allowing convictions by 10-2 and 11-1 votes. For more on the issue, see here, or just look at the cert petition. I’m disappointed, but of course not surprised — for virtually any cert petition, the chances of getting a grant are very slim. And I found the process of drafting a cert petition to be very interesting, enjoyable, and educational.

Many thanks to all who have helped me with this, including Bear Wilner-Nugent and DeAnna Horne (Mr. Herrera’s lawyers below); Don Falk, Brette Simon, Brian Wong, Robert Matthews, Patricia Perretti, Helene Siegel, Stephen Wells, and Kristine Neale (colleagues of mine at Mayer Brown LLP); Profs. Shari S. Diamond, Valerie P. Hans, Kenneth S. Klein, Stephan Landsman, Michael J. Saks, Rita Simon, Neil Vidmar, Jeffrey B. Abramson, Barbara Aldave, Leslie Harris, Carrie Leonetti, Margie Paris, Ofer Raban, Laura Appelman, Caroline L. Davidson, Susan Mandiberg, and Kate Stith, and the Oregon Federal Public Defender and the Lousiana Association of Criminal Defense Lawyers (amici who filed briefs on our side); and Prof. Ken Klein, Douglas Hallward-Driemeier, Aaron Katz, Eugene Morgulis, Prof. Carrie Leonetti, C. Renée Manes, Laura Graser, G. Ben Cohen, Jee Y. Park, and Joshua Perry (the lawyers for those amici). In the words of Hilaire Belloc (who as it happens was the great-grandson of Elizabeth Ryland Priestley, an earlier writer on the freedom of speech), “Decisive action in the hour of need / Denotes the Hero, but does not succeed.” [...]

I’ve just filed a reply brief in Herrera v. Oregon, the case in which I argue that the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, should be read to require jury unanimity for a conviction in state court; and the Louisana Criminal Defense Lawyers Association has filed an amicus brief (thanks to them, and to lawyers G. Ben Cohen, Jee Y. Park, and Joshua Perry, for that). For those interested in the matter, here are all the documents filed at the cert stage:

1. My petition for certiorari.
2. The state’s Brief in Opposition.
3. My reply brief.
4. The amicus brief of 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).
5. The amicus brief of Prof. Jeffrey B. Abramson (Texas), the author of We, the Jury: The Jury System and the Ideal of Democracy.
6. The amicus brief of 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).
7. The amicus brief of the Oregon Federal Public Defender.
8. The amicus brief of Prof. Kate Stith (Yale).
9. The amicus brief of the Lousiana Association of Criminal Defense Lawyers.

An update for those people who have been interested in my certiorari petition in Herrera v. Oregon (the one that argues that the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, should be read to require jury unanimity for a conviction in state court):

A. The Oregon Attorney General’s office has just filed its brief in opposition, in response to the Court’s call for a response.

B. I’ll be writing and filing our reply brief within the next 10 days or so.

C. I’m delighted to say that Prof. Kate Stith of Yale Law School has filed another amicus brief in support of our petition. Many thanks to Prof. Stith, and to Laura Graser, who was Prof. Stith’s lawyer on the brief. [...]

I’m glad to say that yesterday the Supreme Court asked the State of Oregon to file a response in Herrera v. Oregon, the case in which I filed a certiorari petition challenging Oregon’s practice of allowing criminal convictions by nonunanimous juries. (Louisiana is the only other state that allows such convictions in cases to which the Jury Trial Clause applies.)

Such a CFR is necessary but not sufficient for the Court to agree to hear the case. The CFR is a positive signal, since it shows that at least one Justice thought the case had enough possible merit to justify asking that the state respond; most unresponded-to petitions are denied without any response being requested. But of course the Court might well still deny even though it has asked for the response.

The state now has until Dec. 2 to file its brief. We will then reply within the next 10 days, and the Court should decide in January whether it will hear the case.

Note that the call for a response opens up another window for the filing of amicus briefs on our side; such briefs can be filed until Dec. 2. Let me know, please, if you know of some person or group who might be interested in participating. [...]

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 [...]

I was pleased to see that SCOTUSblog listed my certiorari petition in Herrera v. Oregon as one of the three petitions of the day for today. [...]

In the discussion of my Herrera v. Oregon certiorari petition, some wondered about the source of the conclusion that the Sixth Amendment right to trial by jury includes the requirement that the jury be unanimous for a conviction. Recall that this is settled under the Sixth Amendment as such, with regard to federal prosecutions; the question that my petition deals with is whether this provision should be incorporated into the Fourteenth Amendment, and thus bind state prosecutions as well. I thought I’d separately blog the historical discussion (Parts II.A and II.B of the petition), though you can of course also read it in the PDF version. For other arguments, please also look at the PDF.

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.

2 Blackstone, Commentaries *378–79. Likewise, Blackstone listed the requirement of “unanimous suffrage” on a jury as part of the protection provided by the jury trial to “the liberties of England,” and argued that “inroads upon this sacred bulwark of the nation [the jury trial] are fundamentally opposite to the spirit of our constitution.” 4 id. *349–50. John Adams took the same [...]

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 [...]