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Function of Juries & Jury Nullification | 25 Apr 2014

-Supreme Court to Consider Revisiting Non-Unanimous Jury Verdicts


Jury BoxLaw professor Eugene Volokh, of the Volokh Conspiracy, reports that the case of Jackson v. Louisiana is on the Supreme Court’s conference list for today. Jackson v. Louisiana is the latest of several cases in recent years calling upon the Supreme Court to revisit its 1972 rulings in Apodaca v. Oregon and Johnson v. Louisiana, allowing criminal convictions with as few as 9 of 12 members of the jury voting Guilty. Currently both Oregon and Louisiana allow convictions on 10-2 or 11-1 margins, only requiring unanimous verdicts in capital cases.

Non-unanimous criminal jury verdicts

Longtime readers of the blog may remember my interest in non-unanimous jury verdicts. 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.) Only Oregon and Louisiana allow non-unanimous juries in those cases in which the right to trial by jury attaches, but they use them routinely.

The Constitutional Accountability Center (CAC) represents Ortiz Jackson in this case, who was convicted of second-degree murder by a jury vote of 10-2 for a crime in which he denies any involvement. Jackson was sentenced to life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. This is the first time the CAC has represented an individual seeking review. From the CAC’s statement on the case:

Jackson v. Louisiana

State courts in both Louisiana and Oregon have refused to consider the constitutionality of their respective state’s non-unanimous jury rule based primarily on the Supreme Court’s badly fractured 4-1-4 decision in the 1972 case Apodaca v. Oregon, which held that state criminal juries may convict a defendant without unanimous jury consent. Our cert. petition in Jackson demonstrates that Apodaca is not only inconsistent with the history and purposes of the Sixth Amendment, but also with the Court’s more recent case law, and urges the Court to review Jackson in order to put an end to the unconstitutional practices in Louisiana and Oregon.

We argue, among other things, that convicting criminal defendants without the unanimous consent of a jury denies these individuals a right that the Framers viewed as fundamental. As our petition demonstrates, the Framers understood the unanimity of a jury to be as much a part of the jury right as the right to a jury of one’s neighbors and peers. To the Framers, the requirement of jury unanimity was critical to ensuring the full and fair jury deliberations that the Sixth Amendment requires. Indeed, more recent empirical research supports the Framers’ view that jury unanimity is essential to the jury as a bulwark of liberty. Specifically, evidence has shown that when unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating, and are more likely to consider all viewpoints.

Here is the CAC’s petition for a writ of certiorari on behalf of Jackson.

Not only does unanimity require more thorough deliberation, but it also guarantees the accused the benefit of every doubt and conscientious objection of every single person sitting in judgment of him or her.

Andrew Cohen of The Atlantic reports that Jackson v. Louisiana is one of six opportunities the Court has this week to correct the errors it made in 1972 that dramatically crippled our Sixth Amendment right to the benefits of trial by jury. He points out that non-unanimous verdicts also allows prosecutors to technically fulfill their obligations not to arbitrarily discriminate against jurors of racial or other minority groups, yet still nullify their Not Guilty votes through non-unanimous verdicts.

Will the Supreme Court Address Louisiana’s Flawed Jury System?

Prosecutors love the non-unanimous jury rule because it increases the chances of conviction—you don’t have to convince every juror of the defendant’s guilt beyond a reasonable doubt, you just have to get 10 or 11 of 12. Judges love the rule because it expedites deliberations and gets more cases off the docket faster. But for criminal defendants, and especially black criminal defendants in Louisiana, the rule cleaves them even further from defendants in the rest of the country whose liberty may be saved by a holdout juror or two.

Unanimity is required in all federal criminal cases. And only two states, Oregon and Louisiana, have a form of the non-unanimous jury rule. Oregon requires a unanimous verdict in first-degree murder cases, an 11-1 verdict in all other murder cases, and of course doesn’t have the history of racial disparity that has marked Louisiana law for centuries. So, alone in the nation, in a state notorious for racial disparities in its justice systems, Louisiana allows a defendant to be convicted and sentenced to life in prison without parole based upon a 10-2 vote.

What does this rule really do? It increases by a significant degree the odds of a conviction following trial. But it also means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit. That precise scenario has happened in some cases that ultimately resulted in wrongful convictions. The Supreme Court has the opportunity to finally end this practice, which is unjust both in its intent and its effect.

Cohen explains how the strange, split verdict in Apodaca v. Oregon set a terrible precedent, of which Oregon’s and Louisiana’s prosecutors have been taking advantage for far too long:

In Apodoca, eight justices agreed that the Sixth Amendment applied identically to the federal and state criminal trials. Four of the eight concluded that there was no right to a unanimous jury either in federal or state prosecutions. Four more of the eight came to the precisely opposite conclusion—that both state and federal criminal cases had to include unanimous juries. Justice Powell split the baby—unanimous for federal criminal trials, non-unanimous for state criminal trials—without spending great energy explaining why.

The Court has long been aware of the cognitive dissonance of the Apodaca ruling. And in a recent line of cases—like Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker—the Court has expressly endorsed the vitality of a unanimous jury’s function in the criminal justice system. These rulings are inconsistent with Justice Powell’s concurrence in Apodaca and with what’s happening on the ground in Louisiana and Oregon. How can we exalt the jury on one hand and discount the votes of jurors on the other?

James Gill of The Advocate discusses the history of racial discrimination that is entangled with Louisiana’s non-unanimous verdicts:
Jury rules aid sloppy judicial process in La.

The notion that a unanimous jury is a “sacred bulwark” of liberty arose in medieval England, was warmly embraced by the Founding Fathers and was incorporated into Louisiana law until 1898, when the state constitution was amended for the express purpose of keeping black people in their place.

The new constitution allowed conviction by a 9-3 vote, and so it remained until 1974, when the 10-2 standard was adopted. Although by that time constitutional convention delegates were no longer declaring their mission was to maintain white supremacy, their decision to keep the balance tilted in favor of the prosecution inevitably hit black defendants harder. Sure, we like to lock up all kinds, but black people are so seriously overrepresented in the prison population that there’s no doubt where our preference lies.

The Louisiana appeals court in New Orleans has opined that, whatever the motives of their 19th-century predecessors, delegates to the 1973 convention retained nonunanimous verdicts purely for the sake of “judicial efficiency.” Certainly, cases are more promptly wrapped up this way, but the American preference traditionally has been for justice, be it ever so messy.

In recent years, the Supreme Court has been asked more than once to review this gross offense against justice and human rights, but it has so far declined all such cases. In 2010, the American Bar Association argued that the Court should revisit this based, in part, on is appeal to ABA standards that are now obsolete.

ABA: State Convictions Should Require Unanimous Verdicts

The ABA argues that reconsideration is necessary because one of the concurring justices in Apodaca cited the association’s 1968 Standards for Criminal Justice as supporting his conclusion that states could use non-unanimous criminal juries. But, the ABA notes, the standards were amended in 1976, based on intervening research, to state that jury verdicts should be unanimous in all criminal trials.

The ABA says research has continued to show that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials.

A conviction is supposed to require that the prosecution prove its case beyond reasonable doubt. But if 1 or 2 out of 12 jury members—as much as 16% of the panel—have reasonable doubts about the prosecution’s case against the accused, that doesn’t matter in Oregon and Louisiana. The prosecution gets a pass on this crucial standard and the defendant is still convicted, even though reasonable doubt has clearly been expressed through the non-unanimous vote of the jury.

Beyond that, when a unanimous verdict is required, a single conscientious objector of the opinion that the law is inherently unfair or is being unfairly applied in the case at hand can effect jury nullification in that particular trial by maintaining a Not Guilty verdict and hanging the jury. Non-unanimous verdicts undermine this crucial safeguard, purposely designed into our legal system as a failsafe against political corruption and government violations on our human rights. Without a unanimous verdict required, defendants are not protected by the consciences of every member of the jury, a panel that is supposed to represent the conscience of the ENTIRE community and not just the popular opinion of the day.

If it is unfair to put a man to death based on a non-unanimous verdict, how fair is it to sentence him to a life of imprisonment with hard labor and no possibility of parole based on such a verdict? More broadly, if the prosecution can’t convince JUST 12 independent jurors selected OUT OF MILLIONS that it is necessary and just to punish someone, how fair is it to lower the bar even further just to secure convictions and incarcerations?