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Tuesday, September 02, 2008

Near Unanimity on Unanimity

The National Law Journal just ran a story on a new effort to get the Supreme Court to re-visit its decision in Apodaca v. Oregon (1972), which allows states to adopt non-unanimous decision rules in the criminal jury context.  Only two states have adopted such rules, notwithstanding the Supreme Court's permission (though many countries have non-unanimous jury decision rules for criminal convictions) -- and some criminal defendants in Louisiana and Oregon and their lawyers think the time is ripe for overruling Apodaca.  Indeed, a very fancy law professor is on board.  Here's a taste:

In Lee v. Louisiana, veteran high court litigator Jeffrey Fisher of Stanford Law School, co-chairman of that school's Supreme Court Litigation Clinic, argues that nonunanimous verdicts contravene "literally centuries of common law, as well as longstanding American precedent, requiring unanimity to convict in criminal cases."

Supporting his petition is an amicus brief by the American Bar Association, whose standard favoring nonunanimity was relied upon in part by the Apodaca court, but which since has been long abandoned in the face of jury verdict research supporting the importance of unanimity to thoughtful and thorough jury deliberations. Fisher also has drawn amicus support from national and state criminal defense organizations.

As I told the reporter (I'm quoted at the end of the article as a supporter of non-unanimous verdicts) , I don't read the evidence on the importance of unanimity as overwhelming.  But it is certainly true that there is more social science on the subject than there was in 1972 and that the ABA has changed its mind.  Is that a good reason for the Court to grant cert?  I'd doubt it: the evidence isn't especially easy to parse, the Court isn't very good at social science, and the sky hasn't fallen on Oregon or Louisiana.  True, not many states have taken advantage of the possibility -- but that's federalism for you.  To be sure, some of the Court's originalist and jury-centered jurisprudence in the wake of Apprendi, Blakely, etc. gives Fisher et al. hope that the Court will revisit Apodaca.  But in light of the Court's New Federalism (or is it dead?), its newfound interest in what other countries do (where unanimity is not the norm), and the lack of clarity in the research, I'd be surprised if the Court took the case.

If it does, though, I think I'll write an amicus brief in support of non-unanimous verdicts in light of my thinking on the subject over the years.  If you are interested, let me know.

Posted by Ethan Leib on September 2, 2008 at 02:50 PM in Article Spotlight | Permalink


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What if the rules for conviction at the state level were supermajoritarian (as they are)? Does that change your analysis? What is the proof that they must be unanimous to serve that function? In an all-white county, how does the unanimity rule protect blacks?

Do you also think we need to have unanimity for acquittal as we do? Is that consistent with "controlling local majoritarianism"?

Posted by: Ethan Leib | Sep 2, 2008 5:21:54 PM

It is obvious, I think, that having the same constitutional rule on juries for both the feds and the states is silly. As a matter of originalism, this is obvious: 1868 is an entirely different historical moment than 1791. The 39th Congress was worried about state majoritarianism in 1868; the First Congress was worried about federal minoritarianism in 1791. As a matter of policy, it is crazy to think that the feds (with a constitution that is almost impossible to amend and with unelected judges and prosecutors) should be governed by the same legal norms as the states (with easily amended constitutions and elected judges and prosecutors).

In short, we need a jury rule to inject populism into the federal system and control populism at the state level. It is odd to think that the same institution would address these very different concerns.

That said, Williams v Florida (1970) on number of jurors and Apodaca on unanimity are exactly the opposite of the right rules that should be governing the states. If you are worried about state majoritarianism -- especially racial majoritarianism -- then juries at the state level are a useful antidote only if they are big and unanimous. The big, unanimous jury, after all, gives a veto to the under-represented minority that might otherwise be absent from the courtroom. Of course, at the federal level, these worries about majoritarianism are much more attenuated, because raw populist pandering is just much less likely from unelected prosecutors. Therefore, to say that the feds are required to have 12-person unanimous juries but the states are not is exactly the opposite of the sensible rule.

Recall why Duncan's lawyer pressed for jury trial in Duncan v. Louisiana: Perez Leander was the local white supremacist dictator in Plaquemines County, and Duncan, a Black defendant in a racially charged case, could not receive a fair trial from the white officials under Perez's thumb. A jury that was large and unanimous would have a good chance of having a Black member who could veto the prosecution.

I am not saying that such a minoritarian veto is always or necessarily a good idea. But, if one's goal is to control local majoritarianism -- as the goal of the 14th Amendment's equal protection clause surely is -- then using jury trial is a sensible reform ONLY if the jury is NOT majoritarian -- i.e., unanimous.

Posted by: Rick Hills | Sep 2, 2008 3:48:53 PM

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