Tuesday, July 7, 2009

Should Criminal Jury Verdicts Be Unanimous?

Adam Liptak in today's NYT has an interesting article about a case before the Supreme Court regarding the 6th amendment and non-unanimous jury verdicts. In the briefs to the court, the question is very simple: do non-unanimous jury verdicts violate the defendant's 6th amendment right to trial by jury?

“Twelve Angry Men” might have been a much shorter movie had it been set in Oregon. Instead of letting Juror No. 8, the lone holdout played by Henry Fonda, methodically convince his fellow jurors that there was good reason to doubt the defendant’s guilt, an Oregon jury might have just voted and been done with it.

That’s because Oregon is one of only two states that does not require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows convictions by a vote of 10 to 2.

In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity.

But the decisions, one each from Oregon and Louisiana, were badly fractured and internally inconsistent. They concededly ignored the historical record and made assumptions about jury behavior that have been called into question by more recent research.

The men who drafted the Sixth Amendment understood criminal convictions to require, as William Blackstone put it in 1769, “the unanimous suffrage of 12” of the defendant’s “equals and neighbors.” The Supreme Court has invoked that language in recent decisions concerning the importance of the jury’s role in determining facts supporting convictions.

In its brief urging the Supreme Court not to hear Mr. Bowen’s case, Oregon acknowledged that “the common law at the time of the founding required a jury verdict to be unanimous.”

“But it does not follow from that historical fact that a unanimous jury became a constitutional guarantee,” Oregon’s brief said. “Wiser or not, unanimous juries are not a Sixth Amendment mandate.”
Based on a strict reading, Oregon is probably right. And this issue comes up more than you think, especially in pro-death penalty states (like Georgia) where non-unanimous verdict legislation is offered up almost every year. This especially happens after one of those pesky anti-death penalty jurors sneaks through the voir dire process and pulls an 11-1 or 10-2 stunt that ends in a life sentence for the defendant .

But while the 6th amendment may not expressly call for unanimity, the desire to be "efficient" can often harm those with dissenting opinions, especially minorities, women and the poor.

“The argument that people who are in the minority are somehow deviant, not worth respecting or making crazy arguments,” said [Professor Shari Diamond], “just doesn’t hold up.”

A supporting brief filed by Professor Diamond and 16 other scholars said “there was little systematic evidence one way or the other” about jury behavior when the Supreme Court last addressed the question. “Empirical studies conducted since 1972,” the brief went on, “show that jury deliberations are in fact less vigorous when unanimity is not required.”

Justice Potter Stewart, dissenting in the 1972 decision from Louisiana, identified a further problem with nonunanimous juries. The jurors in the majority, he said, “can simply ignore the views of their fellow panel members of a different race or class.”

Indeed, that may have been part of the reason for the practice in the first place.

“Recent historical scholarship indicates,” Charles J. Ogletree, a law professor at Harvard, wrote in a supporting brief in Mr. Bowen’s case, “that one of the original purposes of the nonunanimous jury was to functionally silence the views of racial and ethnic minorities and women.”
Liptak notes the ABA, defense lawyers, experts in jury behavior, legal historians and civil rights lawyers are all pushing the Supreme Court to take the case and rule non-unanimous verdicts unconstitutional. And they have potential allies on the court that may surprise you.
Mr. Bowen may find allies in two of the current court’s more conservative members, Justices Antonin Scalia and Clarence Thomas, who have often joined with more liberal justices to enforce the original meaning of constitutional provisions protecting the rights of criminal defendants.
It sounds like the justices will be able to find at least four votes to hear this case in the next term, so be on the lookout next fall.

1 comment:

Edward P. Schwartz said...

For a non-knee-jerk argument in favor of non-unanimous verdicts, please see my own blog entry on the topic. http://tinyurl.com/lcg923