# Petition for Writ of Certiorari — Myklebust v. Oregon (No. 07-1057)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0626%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

071057DEC.2 8 2007
No. OPFICE OF THE OLSFUC

In The

Supreme Court of the United States

Todd Allen Myklebust,
Petitioner,
v.
State of Oregon,

Respondent.

On Petition for Writ of Certiorari

To The Oregon Court of Appeals
PETITION FOR WRIT OF CERTIORARI

Jay W. Frank
Counsel of Record

MOULE & FRANK, Lawyers
259 E. 5th Avenue
Eugene, OR 97401

(541) 485-1311]

QUESTION PRESENTED FOR REVIEW

Whether the Sixth and Fourteenth Amendments
to the Constitution of the United States require a
jury verdict of guilty on a felony charge of
manslaughter in the second degree in a state court

trial to be unanimous.

i

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED
OEE ME RES, ssasctnscesccnquesescecsesessncceessocnseacseses i
TABLE OF CITED AUTHORITIEBEG......................... ill
ORDERS BELOW............. MUA stadies ast lacphicnacnasineincsdeh 1
ean cabicchssnncerinscevessesinucssserenesstees 1

CONSTITUTION PROVISIONS AND STATUTE.. 2

a .. casecsunvenicaconncocainn, cocunsannassecs 3
REASONS FOR ALLOWANCE OF THE WRIT...... 5
ET 9
Ce cccncsccncconnezsneeeceanseen sue... App. 1

Order of Oregon Court of Appeals Affirming
Nee sceaseaanene App. 1
Transcript of Order of Circuit Court Denying
Motion to Require Jury Unanimity...... App. 2
Order of Oregon Supreme Court Denying

aah ckcdurenisuebtwntenianentesenen App. 6

1}

Defendant’s Circuit Court Motion to Require
PO RE vas ctticintteritcnisiiiiinapinwhai App. 7
Circuit Court Brief in Support of Defendant’s
Motion to Require Jury Unanimity...... App. 9
Appellant’s Brief in the Oregon Court of
PIE, ivitsitiniascisninianiibonaniaitiemeicaeama App. 13
Petition for Review in the Oregon Supreme

ERED sistisaiiaicenautiplabssniaciablaaacndam aaa App. 24

11]

TABLE OF CITED AUTHORITIES

Page
CASES
Apodaca v. Oregon, 406 U.S. 404 (1972)................ 6,9
Blakely v. Washington, 542 U.S. 296 (2005)......... 7,9
Johnson v. Louisiana, 406 U.S. 366, 380, 395, 399
SU eciascictecticcncsiteshendehattsacenenicts bailadlals Wigidacsan ai ciacieaes 6-7, 9

CONSTITUTION PROVISIONS AND STATUTE
The Sixth Amendment to the Constitution of the
Pn 0s bas pee gm noenoantiaian 2,6
The Fourteenth Amendment to the Constitution
SE i ion so ncadko ta ca cetnnscccasecs 2-3, 6
Article I, section 11, of the Oregon Constitution..2, 3

I ai ccicisncctrneicedlccandh tadeadasaitnamacdeons makati 2,3

1

PETITION FOR A WRIT OF CERTIORARI

Todd Allen Myklebust respectfully petitions for
a writ of certiorari to review the judgment of the
Oregon Court of Appeals in this case.
ORDERS BELOW
The circuit court’s oral denial of petitioner’s
motion to require jury unanimity (App. 3 - App. 4,
App. 12 - App. 13)) is unreported. The affirmance
without opinion by the Oregon Court of Appeals is
reported at 210 Or.App. 756, 153 P.3d 178 (App. 1).
The denial of discretionary review by the Supreme
Court of Oregon is reported at 343 Or. 224, 168 P.3d
1155 (App. 5).
JURISDICTION
The Supreme Court of Oregon denied review
October 4, 2007. The statutory provision which

confers on this Court jurisdiction to review on a writ

2

of certiorari the judgment or order in question is 28
U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS AND
STATUTE

Oregon Revised Statutes (“ORS”) 136.450(1)
states, in pertinent part, that “the verdict of a trial
jury in a criminal action shall be by concurrence of
at least 10 of 12 jurors.”

Article I, section 11 of the Oregon Constitution
states, in pertinent part, that “in the circuit court
ten members of the jury may render a verdict of
guilty or not guilty.”

The Sixth Amendment to the Constitution of the
United States states: “In all criminal prosecutions,
the accused shall enjoy a right toa ... trial, by an
impartial jury ...

Section 1 of the Fourteenth Amendment to the

Constitution of the United States states:

3

.... No State shal] make or enforce any
law which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of life,
liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws.

THE CASE

Petitioner was indicted on a felony charge of
manslaughter in the second degree. (App. 10). He
moved the court, prior to trial, for an order directing
that, notwithstanding ORS 136.450(1) and Article
I, § 11, of the Oregon Constitution, any verdict of
conviction by the trial jury on the felony charge of
manslaughter in the second degree must be
“confirmed by the unanimous suffrage” of each and
every one of the 12 jurors. (App. 6, App. 12). He also

submitted a brief containing the following

4

argument in support of his motion:

kKkk*K

Notwithstanding Apodaca [v. Oregon, 406

U.S. 404 (1972)], ORS 136.450(1), and
Article I, § 11, of the Oregon Constitution,
any verdict of conviction by the trial jury on
count 1 [manslaughter in the second degree]
must be “confirmed by the unanimous
suffrage” of each and every one of the 12

jurors. Blakely [v. Washington], 124 S.Ct.

[2531 (2004),] at 2536.
(App. 7 -App. 8, App. 12 - App. 13).
Petitioner's attorney reiterated the foregoing
argument at a pretrial hearing on the motion. (App.
3 - App. 4, App. 12) The trial court denied the
motion, stating: “I deny the request.” (App. 4, App.
12).

The jury found petitioner guilty of manslaughter

5

in the second degree by a vote of 10 to 2 at trial.

(App. 11). The court sentenced petitioner to serve 75
months in prison. (App. 11)

Petitioner appealed to the Oregon Court of
Appeals, and in his second assignment of error
sought review of the trial court’s denial of his
motion for jury unanimity. (App. 9 - App. 14). The
Oregon Court of Appeals affirmed without opinion.
(App. 1).

Petitioner petitioned the Supreme Court of
Oregon for review; the second legal question
presented for review was “whether the Sixth and
Fourteenth Amendements to the Constitution of
the United States require that any jury verdict of
guilty of a felony must be unanimous.” (App. 15 -
App. 18). The Supreme Court of Oregon denied
review. (App. 5).

REASONS FOR ALLOWANCE OF THE WRIT

6

In Apodaca v. Oregon, 406 U.S. 404 (1972), five
Justices of this Court, including Justice Powell,
concluded that unanimity is an _ indispensible
feature of every criminal jury trial in federal court,
pursuant to the Sixth Amendment; and eight
Justices concluded that the concept of a jury trial,
as applicable to the States under the Fourteenth
Amendment, must be identical in every detail to
the concept required in federal courts by the Sixth
Amendment. Apodaca, 406 U.S. at 414-415
(Stewart, J., dissenting); Johnson v. Louisiana, 406
U.S. 366, 369-380 (1972) (Powell, J., concurring in
the judgment); Johnson, 406 U.S. 380, 380-394
(1972) (Douglas J., dissenting); Johnson, 406 U.S.
395, 395-396 (1972) (Brennan J., dissenting);
Johnson, 406 U.S. 399, 406 U.S. 399, 399-403
(1972) (Marshall, J., dissenting). However, Justice

Powell, one of the five member majority on the

7

former question, disagreed with all of the other
eight Justices on the latter question, and concluded
that unanimity is not an indispensible feature of
jury trials in state courts, as opposed to jury trials
in federal courts. Johnson, 406 U.S. at 369-380
(Powell, J., concurring in the judgment).

As a_ result of Justice Powell’s. singular
conclusion that unanimity is required in criminal
trials in federal courts, but not in such trials in
state courts, persons accused of crimes in the
federal courts of Oregon and all other states during
the past 35 years have had a right to unanimous
jury verdicts, while identically situated persons
accused of crimes in the state courts of Oregon have
been deprived of the same right.

In Blakely v. Washington, 542 U.S. 296 (2005),
this Court stated:

This case requires us to apply the rule we

8

expressed in Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000): “Other than the fact of a prior
conviction, any fact that increases. the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”
This rule reflects two longstanding tenets of
common-law criminal jurisprudence: that the
“truth of every accusation” against a defendant
“should afterwards be confirmed by the
unanimous suffrage of twelve of his equals and
neighbours,” 4 W. Blackstone, Commentaries
on the Laws of England 343 (1769), and that
“an accusation which lacks any particular
fact which the law makes essential to the
punishment is ... no accusation within the

requirements of the common law, and it is no

ie tere

a Ae a A

9
accusation in reason,” 1 J. Bishop, Criminal
Procedure § 87, p. 55 (2d ed. 1872).

(Emphasis added). 542 U.S. at 301-302.

Apodaca was decided wrongly. See Blakely,
542 U.S. at 301-302; Apodaca, 406 U.S. at 414-415
(Stewart, J., dissenting); Johnson, 406 U.S. 380,
380-394 (Douglas J., dissenting); Johnson, 406 U.S.
395, 395-396 (Brennan J., dissenting); Johnson, 406
U.S. 399, 406 U.S. 399, 399-403 (Marshall, J.,
dissenting).
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Jay W. Frank
Counsel of Record
MOULE & FRANK

Lawyers

10

259 E. Fifth Avenue
Eugene, OR 97401
(541) 485-1311

December 2007

App. 1

FILED: January 31, 2007

IN THE COURT OF APPEALS OF THE STATE OF

OREGON
STATE OF OREGON,
Plaintiff-Respondent
v.
TODD ALLEN MYKLEBUST,
Defendant-Appellant.
Douglas County Circuit Court
03CR2119FE
A130984
William L. Lasswell, Judge

Argued and submitted: January 12, 2007

Before Edmonds, Presiding Judge, and Wollheim,

Judge, and Riggs, Senior Judge

Attorney for Appellant: Jay W. Frank

Attorney for Respondent: Kaye E. McDonald

AFFIRMED WITHOUT OPINION.

App. 2

keke <«k &

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF DOUGLAS

STATE OF OREGON, )

Plaintiff, )

VS. )
TODD ALLEN. )
MYKLEBUST, )

Defendant. )
)
)

Douglas County
Case No.
03CR2119FE
Court of
Appeals

Case No.

A127881

BE [IT REMEMBERED that the above-

entitled matter came on for hearing on the

30th day of November, 2004, in Circuit

Court ... Douglas County ..., before the

HONORABLE WILLIAM L. LASSWELL,

Judge Presiding.

APPEARANCES

App. 3
TIMOTHY BARNACK, Deputy District

Attorney, Medford, Oregon, appearing in

behalf of the Plaintiff.

JAY W. FRANK, Attorney at Law,

Eugene, Oregon, appearing in behalf of the

Defendant.

(Whereupon the following proceedings

tooplace before the Court, to wit:)

THE COURT: This is the time set for
the trial of the case of State of Oregon versus Todd
Allen Myklebust. ...

kkk KK

THE COURT: There are a number of
pretrial matters that we’re to consider ...

kkk

MR. FRANK: ... 1 did file a document

entitled ... “defendant’s motions.” ... That was on or

about August 17th, 2004. ...

App. 4

S222 2

MR. FRANK: Your Honor, my next
issue ... is more for the record, but I move[d] to
require jury unanimity on count one based on some
language in the recent Supreme Court decision ...
Blakely versus Washington, and I explain that in
Apodac[a] versus Oregon ... from 1972, 406 U.S.
404, there was a plurality of Justices of the
Supreme Court that said jur[ies] don’t have to be
unanimous under the sixth amendment. There was
another Justice, Justice Powell, who [held] that
even though jury unanimity was required under the
sixth amendment that that aspect of the right to
jury trial wasn’t applicable to the states, and as a
result Oregon was permitted to have _ non-
unanimous juries in felony cases. However, in
Blakely versus Washington decided last summer,

124 S Court 2531, at page 2536, a majority of five

App. 5

justices state that the truth of every ac[cu]s[a]tion
against a defendant should afterwards’ be
confirmed by the unanimous suffrage of twelve of
his equals and neighbors, quoting Blackstone. And
so my argument is that Apodac[a] is no longer good
law. The Oregon statute 136.450 sub 1, and article
[I] section 11 of the Oregon constitution are
unconstitutional in light of Blakely, adn therefore a
unanimous verdict should be required.

MR. BARNACK: I- don’t have any
response on that, your Honor.

THE COURT: I deny the request.

App. 6

IN THE SUPREME COURT OF THE STATE OF
OREGON
STATE OF OREGON,
Plaintiff-Respondent, Respondent on Review
v.
TODD ALLEN MYKLEBUST
Defendant-Appellant, Petitioner on Review
Court of Appeals
A130984
5054663
ORDER DENYING REVIEW
Upon consideration by the court,
The court has considered the petition for review and
orders that it be denied.

October 4, 2007 /s/ Paul J. De Muniz

CHIEF JUSTICE
c: Kaye Ellen McDonald

Jay W Frank

App. 7

FILED

04 AUG 18 AM 9:07

DOUGLAS COUNTY

TRIAL COURTS

IN THE CIRCUIT COURT OF THE STATE OF
OREGON FOR DOUGLAS COUNTY
THE STATE OF OREGON, ) Case No.

Plaintiff, ) 03CR2119FE

VS. ) DEFENDANT'S
TODD ALLEN ) MOTIONS
MYKLEBUST, )

Defendant. )

or. 2 s
Defendant respectfully moves the court for an
order directing that, notwithstanding ORS
136.450(1), and Article, I, § 11, of the Oregon
Constitution, any verdict of conviction by the trial

jury on count 1 must be “confirmed by the

ears:
se
a

App. 8

unanimous suffrage” of each and every one of the 12

jurors.

KRKEK* =

The foregoing motions are supported by the

attached ... brief, ...

by reference.

which [is] incorporated herein

Respectfully submitted,
MOULE & FRANK,
Lawyers

/s/ Jay W. Frank

Jay W. Frank
Attorney for Defendant
Bar No. 79042

Phone: (541) 485-1311

App. 9

IN THE CIRCUIT COURT OF THE STATE OF
OREGON FOR DOUGLAS COUNTY
THE STATE OF OREGON, ) Case No.

Plaintiff, ) 038CR2119FE

vs ) BRIEF
TODD ALLEN )
MYKLEBUST, )

Defendant )

x**x*kete

MOTION TO REQUIRE JURY UNANIMITY ...
kkk et

In Apodaca v. Oregon, 406 U.S. 404... (1972), a
plurality of four Justices of the Supreme Court of
the United States (Justice White, Chief Justice
Burger, Justice Blackmun and Justice Rehnquist)
concluded that the Sixth Amendment guarantee of
a jury trial, made applicable to the states by the

Fourteenth Amendment, does not require that the

App. 10

jury's vote be unanimous. 406 U.S. at 405-412. A
fifth Justice, Justice Powell, concluded that,
although on the basis of history and precedent the
Sixth Amendment mandates unanimity in a federal
jury trial, the Due Process Clause of the Fourteenth
Amendment, while requiring states to provide jury
trials for serious crimes, does not incorporate all
the elements of a jury trial within the meaning of
the Sixth Amendment and does not require jury

unanimity. Johnson v. Louisiana, 406 U.S. 366,

369-375 ... (1972).

In Blakely v. Washington, U.S. __,124S.Ct.

2531 ... (2004), a majority of five Justices of the
Supreme Court of the United States, none of whom
were members of the Supreme Court in 1972,
stated:

This case requires us to apply the rule we

expressed in Apprendi v. New Jersey, 530

App. 11

U.S. 466, 490, ... (2000), “Other than the fact
of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”
This rule reflects two longstanding tenets of
common-law criminal jurisprudence: that the
“truth of every accusation” against a

defendant “should afterwards be confirmed

by the unanimous suffrage of twelve of his

equals and neighbours,” 4 W. Blackstone,
Commentaries on the Laws of England 343
(1769), and that “an accusation which lacks
any particular fact which the law makes
essential to the punishment is ... no
accusation within the requirements of the
common law, and it is no accusation in

reason,” 1 J. Bishop, Criminal Procedure §

App. 12

87, p. 55 (2d ed. 1872).
(Emphasis added). 124 8.Ct. at 2536.
Notwithstanding Apodaca, ORS 136.450(1), and
Article I, § 11, of the Oregon Constitution, any
verdict of conviction by the trial jury on count 1
must be “confirmed by the unanimous suffrage” of
each and every one of the 12 jurors. Blakely, 124
S.Ct. at 2536.
Respectfully submitted,
MOULE & FRANK,
Lawyers

/s/ Jay W. Frank

Jay W. Frank

Attorney for Defendant

App. 13
IN THE COURT OF APPEALS OF THE STATE OF
OREGON
STATE OF OREGON, )

Plaintiff-Respondent, ) Douglas County

V. ) Circuit Court No.
TODD ALLEN ) 0O38CR2119FE
MYKLEBUST, ) CA A130984

Defendant-Appellant. )
APPELLANT’S BRIEF AND EXCERPT OF
RECORD |
Appeal from a judgment of the Circuit Court
for Douglas County;
Honorable WILLIAM L. LASSWELL, Judge.
JAY W. FRANK, Attorney for Appellant
Moule & Frank, Lawyers
259 E. 5th Avenue
Eugene, OR 97401

79042

App. 14

(541) 485-1311
MARY H. WILLIAMS, Attorney for Respondent
Assistant Attorney General
1162 Court Street NE
Salem, OR 97301
#91124
(503) 378-4402
01/23/06
ke kK
APPELLANT’S BRIEF
STATEMENT OF THE CASE
The nature of the action or proceeding, the
relief sought and the indictment, ...
Defendant Todd Allen Myklebust
(“defendant”) seeks reversal in this criminal case of

his conviction for manslaughter in the second degree

Defendant was accused by indictment of the

App. 15

offenses of manslaughter in the second degree ...,

and driving while under the influence of intoxicants
(“DUII’), committed as follows:
COUNT 1

The said TODD ALLEN MYKLEBUST, on or

about the 23rd day of November, 2003, in said

County of Douglas and State of Oregon, then and

there being, did unlawfully and recklessly cause the

death of another human being, to-wit: Dennis

Clayton Zuver, by colliding into a tree causing

portions of said tree to fall into a public highway,

a2 2

The nature of the judgment sought to be
reviewed, and the fact that trial was before a
jury
On November 30, 2004, defendant pled guilty

to the charge of DUII (count 2) and, thereafter, trial

: i

App. 16

commenced before a jury on the charge of
manslaughter in the second degree (count 1). On
December 2, 2004, the jury found defendant guilty
of manslaughter in the second degree by a vote of
SS

On December 20, 2004, at sentencing, the
Honorable William L. Lasswell, Circuit Court
Judge, (1) adjudged that defendant had been
convicted of manslaughter in the second degree on
the basis of the aforementioned jury verdict; ...;
sentenced defendant, ..., to serve 75 months in
prison; ordered that defendant may not receive
credit for time served, or be considered for
alternatives to incarceration or alternative
sanctions, ...; [and] suspended execution of
defendant’s sentence pending appeal; ...; and (2)
adjudged that defendant had been convicted of DULI

on the basis of the aforementioned guilty plea; ...;

App. 17

sentenced defendant to serve 30 days in jail; ...;
fand] ordered that this sentence shall be concurrent
with the foregoing sentence on the conviction for
manslaughter in the second degree; ....

kkk ke

A brief statement of questions presented on
appeal

ee

4. Do the Sixth and Fourteenth
Amendments to the Constitution of the United
States require that any verdict of guilty of
manslaughter in the second degree must be
unanimous?

kkk KS

A concise summary of the arguments
appearing in the body of the brief

z<¢22s 23

4. The Sixth and Fourteenth Amendments

App. 18

to the Constitution of the United States require
that any verdict of guilty of manslaughter in the
second degree must be unanimous.

kKKKK

SECOND ASSIGNMENT OF ERROR

The trial court erred in denying defendant’s
motion to require jury unanimity for conviction on
count 1.

A. Preservation of Error

Defendant respectfully move[d] the

court for an order directing that,

notwithstanding ORS 136.450(1) and

Article I, § 11, of the Oregon

Constitution, any verdict of conviction

by the trial jury on count 1 must be

“confirmed by the unanimous suffrage”

of each and every one of the 12 jurors.

.... A brief in support of the motion stated:

App. 19

Notwithstanding Apodaca, ORS
136.450(1), and Article I, § 11, of the
Oregon Constitution, any verdict of
conviction by the trial jury on count 1
must be “confirmed by the unanimous
suffrage” of each and every one of the
12 jurors. Blakely, 124 S.Ct. at 2536.

At the hearing on the motion, defendant’s
attorney reiterated the foregoing argument. ... The
trial court denied the motion, stating: “I deny the

request.” ...

=: 2 2S

ARGUMENT

In Apodaca v. Oregon, 406 U.S. 404 ... (1972),

a plurality of four Justices of the Supreme Court of
the United States (Chief Justice Burger, and
Justices White, Blackmun, and _ Rehnquist)

concluded that the Sixth Amendment guarantee of

App. 20

a jury trial, made applicable to the states by the
Fourteenth Amendment, does not require that a
jury’s vote be unanimous. 406 U.S. at 405-412. A
fifth Justice, Justice Powell, concluded that,
although on the basis of history and precedent the
Sixth Amendment mandates unanimity in a federal
jury trial, the Due Process Clause of the Fourteenth
Amendment, which requires states to provide jury
trials for serious crimes, does not incorporate all
the elements of a jury trial within the meaning of

the Sixth Amendment, and does not require jury

unanimity. Johnson v. Louisiana, 406 U.S. 366,

369-375 ... (1972).

In Blakely v. Washington, 542 U.S. 296, 301

... (2004), a majority of five Justices of the Supreme
Court of the United States, none of whom were
members of the Supreme Court in 1972, stated:

This case requires us to apply the

ey &

App. 21

rule we expressed in Apprendi v. New
Jersey, 530 U.S. 466, 490 ... (2000);
“Other than the fact of a prior
conviction, any fact that increases the
penalty for a crime-~ beyond the
prescribed statutory maximum must
be submitted to a jury, and proved
beyond a reasonable doubt.” This rule
reflects two longstanding tenets of
common-law criminal jurisprudence:
that the “truth of every accusation”
against a defendant “should
afterwards be confirmed by the
unanimous suffrage of twelve of
his equals and neighbors,” 4 W.
Blackstone, Commentaries on_ the
Laws of England 343 (1769), and that

eé

an accusation which lacks any

BS
aud
Ca

App. 22

particular fact which the law makes
essential to the punishment is ... no
accusation within the requirements of
the common law, and it is no
accusation in reason,” 1 J. Bishop,
Criminal Procedure § 87, p. 55 (2d ed.

1872).

(Emphasis added).

The Sixth and Fourteenth Amendments to

the Constitution of the United States required jury

unanimity for a conviction on count 1. Blakely, 542

U.S. at 301.

KkeKEEKK

Respectfully submitted,

MOULE & FRANK,
Lawyers

/si Jay W. Frank

Jay W. Frank

App. 23

Attorney for Appellant

App. 24

IN THE SUPREME COURT OF THE STATE OF

OREGON
STATE OF OREGON, )
Respondent on Review, ) Douglas County
v. ) Circuit Court No.
TODD ALLEN ) O3CR2119FE
MYKLEBUST, ) CA A130984
Petitioner on Review. )

PETITION FOR REVIEW
Petition for review of the decision of the
Court of Appeals on appeal from a judgment of the
Circuit Court for Douglas County; Honorable

WILLIAM L. LASSWELL, Judge.

AFFIRMED WITHOUT OPINION: January 31,
2007
Before EDMONDS, Presiding Judge
WOHLHEIM, Judge

RIGGS, Senior Judge

App. 25

JAY W. FRANK, Attorney for Appellant
Moule & Frank, Lawyers
259 E. 5th Avenue
Eugene, OR 97401
#79042
(541) 485-1311
KAYE E. MCDONALD, Attorney for Respondent
Assistant Attorney General
1162 Court Street NE
Salem, OR 97301
#91124
(503) 378-4402
kkk
Concise statements of the legal questions
presented on review and of the rules of law
that the petitioner proposes be established, if

review is allowed.

x*ekk

Se
etal

App. 26

2. The second legal question is whether the
Sixth and Fourteenth Amendments to _ the
Constitution of the United States require that any
jury verdict of guilty of a felony must be unanimous.
The rule of law that defendant proposes be
established is that the Sixth and Fourteenth
Amendments to the Constitution of “he United
States requires [sic] that any jury verdict of guilty
of a felony must be unanimous.

tke etek
A brief argument concerning the legal
questions presented on review.

a a a

2. In Apodaca v. Oregon, 406 U.S. 404 ...

(1972), a plurality of four Justices of the Supreme
Court of the United States (Chief Justice Burger,
and Justices White, Blackmun, and Rehnquist)

concluded that the Sixth Amendment guarantee of

App. 27
a jury trial, made applicable to the states by the
Fourteenth Amendment, does not require that a
jury’s vote be unanimous. 406 U.S. at 405-412. A
fifth Justice, Justice Powell, concluded that,
although on the basis of history and precedent the
Sixth Amendment mandates unanimity in a
federal jury trial, the Due Process Clause of the
Fourteenth Amendment, which requires states to
provide jury trials for serious crimes, does not
incorporate all the elements of a jury trial within
the meaning of the Sixth Amendment, and does not

require jury unanimity. Johnson v. Louisiana, 406

U.S. 366, 369-375 ... (1972).

In Blakely v. Washington, 542 U.S. 296, 301

... (2004), a majority of five Justices of the Supreme
Court of the United States, none of whom were
members of the Supreme Court in 1972, stated:

This case requires us to apply the

App. 28

rule we expressed in Apprendi v. New
Jersey, 530 U.S. 466, 490 ... (2000);
“Other than the fact of a _ prior
conviction, any fact that increases the
penalty for a crime beyond the
prescribed statutory maximum must
be submitted to a jury, and proved
beyond a reasonable doubt.” This rule
reflects two longstanding tenets of
common-law criminal jurisprudence:
that the “truth of every accusation”
against a defendant “should
afterwards be confirmed by the
unanimous suffrage of twelve of
his equals and neighbors,” 4 W.
Blackstone, Commentaries on _ the
Laws of England 343 (1769), and that

“

an accusation which lacks’ any

App. 29

particular fact which the law makes

essential to the punishment is ... no

accusation within the requirements of

the common law, and it is_ no

accusation in reason,” 1 J. Bishop,

Criminal Procedure § 87, p. 55 (2d ed.

1872).

(Emphasis added).

The Sixth and Fourteenth Amendments to
the Constitution of the United States required jury
unanimity for a conviction of a felony. Blakely, 542
U.S. at 301.

Respectfully submitted,
MOULE & FRANK,
Lawyers

Jay W. Frank

Jay W. Frank

Attorney for [Petitioner]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0626%3A1. Public record. Not legal advice.