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Monday, June 28, 2010

Did McDonald Overrule Apodaca?

No. But today’s decision in McDonald v. City of Chicago did include an interesting footnote that stood out to my criminal law-focused mind, dealing with the unanimous jury requirement under the Sixth Amendment.

In applying the Second Amendment to the States through the Due Process Clause, the majority in McDonald rejected the argument that “incorporation” can provide a “watered-down” version of federal rights. (p. 17) On the contrary, the Court held that “incorporated Bill of Rights protections ‘are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’” (pp. 17-18) The Court, however, noted “one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404 (1972); see also Johnson v. Louisiana, 406 U.S. 356 (1972).” (p. 18 note 14)

Oregon and Louisiana currently permit non-unanimous jury verdicts in felony cases. In 2008, the Supreme Court declined to review a challenge to Louisiana's law, in Lee v. Louisiana. In McDonald, however, the Supreme Court noted: “[Apodaca] was the result of an unusual [4-1-4] division among Justices, not an endorsement of the two-track approach to incorporation.” (p. 18 note 14) After reviewing this “unusual” 4-1-4 voting arrangement in Apodaca, the Court opined: “Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” (id.) The Court concluded the footnote with a citation to Justice Brennan’s dissent in Johnson, quoting Justice Brennan’s statement: “the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment jury trial guarantee, however it is to be construed, has identical application against both the State and Federal Governments.”

Justice Thomas joined this part of Justice Alito’s opinion, making it the opinion of the Court. Difficult to imagine that Apodaca still could survive this analysis, either on the merits of incorporation doctrine, or on a stare decisis theory, no?

Posted by Brooks Holland on June 28, 2010 at 08:08 PM | Permalink


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I noticed this too. But they also denied cert. in Bowen v. Oregon (raising the same issue) in Oct. 2009, with a strong Stanford SCT clinic petition and an ABA amicus filing. http://juries.typepad.com/juries/unanimous/ So I guess this is a situation where a majority thinks the case is wrongly decided, but they can't get four to take it up. Or could it be that there is a fear that Apodaca would be repaired by allowing non-unanimous juries in federal cases?

Posted by: Jack Chin | Jun 28, 2010 11:32:32 PM

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