Opposition Brief — Bowen v. Oregon (No. 08-1117)

Supreme Court. U.S

FILED

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OFFICE OF THE CLERK |

No. 08-1117

In the Supreme Court

of the United States

SCOTT DAVID BOWEN,

Petitioner,

Vv.

STATE OF OREGON,

Respondent.

On Petition for Writ of Certiorari to the

Oregon Court of Appeals

BRIEF FOR RESPONDENT STATE OF OREGON IN

OPPOSITION

JOHN R. KROGER

Attorney General of Oregon

MARY H. WILLIAMS

Deputy Attorney General

*JEROME LIDZ

Solicitor General

JANET A. METCALF

ANNA M. JOYCE

Assistant Attorneys General

400 Justice Building

Salem, Oregon 97301-4096

Phone: (503) 378-4402

Counsel for Respondent

*Counsel of Record

a

WILSON-EPES PRINTINGCO., INC. — (202) 789-0096 — WASHINGTON, D.C 20002

QUESTION PRESENTED

Thirty-seven years ago this Court held, in an

Oregon case, that non-unanimous, 11-1 and 10-2

jury verdicts in felony cases do not violate the

Sixth Amendment. Apodaca v. Oregon, 406 U.S.

404 (1972). See also Johnson v. Louisiana, 406

U.S. 356 (1972). Since then, Oregon has relied on

Apodaca to administer Oregon’s seventy-five-

year-old constitutional provision that permits

Kass-than-unanimous jury verdicts in felony cases

other than murder, Or. Const. Art. I, section 11.

The question presented is:

Whether this Court should overrule Apodaca

and hold that the Sixth Amendment, as incorpo-

rated through the Fourteenth Amendment, re-

quires jury verdicts in state court felony cases to

be unanimous.

TABLE OF CONTENTS

Page

QUESTION PIRES G it ceseesescessee es occeees0....02 5.0000. j

STATEMENT OF THE CASE ......................020c00- 1

A. Statemnesn’ Gi GHie Pe ses eectessececcse vce cccccce.. 1

B. Trial court precesaeeee................................ 2

C. State appellate court proceedings............... 4

SUMMARY OF ARGUMENT ......................:cceeceees 5

REASONS FOR DENYING THE PETITION ......8

A. Stare decisis requires that petitioner

provide a compelling justification for

Overruling ADOCACG. .............cccscecesccsesceeeescess 8

B. Apodaca is not inconsistent with Blakely or

ADDF OCTRGL, .cccss Ee teeabanenesecersesse 11

C. Petitioner’s historical arguments provide

no persuasive reason for this Court to

revisit the result in Apodaca. ..................:. 13

D. Recent empirical research is not relevant to

whether this Court should revisit Apodaca

and, in all events, provides no persuasive

support for petitioner’s claim. ................... 19

CON CLUSIII Gece irons eco0ne.000.. 24

i

TABLE OF AUTHORITIES

Page

Cases Cited

Akron v. Akron Center for

Reproductive Health, Inc.,

Be Es oe ee I a oss tas Sikdck eee 9

American Pub. Co. v. Fisher,

PI ye OES gine seasidivndneacecasacasersecnmaatnn 12

Andres v. United States,

te Erte, FR EI caisdsccsincisne2s dscnusaseeseeontcesrerssues 12

Apodaca v. Oregon,

MS UF 5 TD sss snssisnstserssesvuoctncsveeres passim

Apprendi v. New Jersey,

SSO US. SOG CO) oc vesvsccecsccscecsccssce 11, 12, 14, 24

Arizona v, Rumsey,

OGs 0 Se ok. cde oe 8

Blakely v. Washington,

542 U.S. 296 (2004) ............ 2, 3, 4, 11, 12, 14, 24

Brown v. Loutsiana,

BET UT Fe; Fa orc caces cesses cciicosasicesseean 10

Burch v. Louisiana,

RRS. 1G: | rer rE arr enon 10, 19

Gasoline Products Co. v. Champlin Co.,

28 US. Se AOE ciiorintenc ees 23

Hilton v. S. C. Pub. Rys. Comm’n,

Me Ee Ue OES oekcncte sekevconcvaviervasuncness 9,10, 19

Howard v. Oregon,

129 S. Ct. 633 (2008) (No. 08-6449)................... 5

Johnson v. Louisiana,

ee cade sscyeceucassxaassiucccibescodesnurss i

Lee v. Louisiana,

129 S. Ct. 180 (2008) (No. 07-1523)................... S

Ludwig v. Massachusetts,

A ee TD a nesvasven cx cesneensnnveakscacascaccescent 19

Maxwell v. Dow,

ee UE wreschossvicisaucecowdsbeswvncssuvacneneues 12

McKoy v. North Carolina,

7 BR Ee | er eee 10

Montejo v. Louisiana,

129 S. Ct. 2079 (2009) (No. 07-1529)................. 9

Patton v. United States,

ee Fe, We I icy da cecco hansnvexenecuvarcvcacnouteadons 12

Payne v. Tennessee,

ee cnc cami ceaeee ae 9

Pearson v. Callahan,

129 S. Ct. 808 (2009) (No. 07-751)..................0. 9

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

Be 0 eC as oo dicc chee dececscescesecsencaceoe 20, 21

1V

Schad v. Arizona,

Be te ED sind vvswesieodsnvnessvsnsccenecxabbuervenss 10

Thompson v. Utah,

re Ne I occ ve bvavcveaids -ncerieaccommanmeacnine 12

Welch v. Dep't. of Highways & Pub. Transp.,

I Ft I NE oo ori ssccnscecescnnasavandvessossasrenceen 8

Williams v. Florida,

BF hs FI wivccsicessicnveinvescsenss 14, 15, 16, 19

Constitutional and Statutory Provisions

DO aia saci cinnanoucseeccisosicenerae i, 4, 5

FG, FW TE. FR i vvcesvcccsincscenesasecevececssescconnses 2

TO FE Fh FI iia kane enccscescscccscnsavseveersnacas 2

OO, WU. PEGE, BB ee ave nivccdecsnecssvccrcocctcacaceoeavencees 2

TITS. MUNOE, PIII, VE ooncenescsicsccssccenssecncesees passim

Be RA I 0 ioe svi cnsecicncenecsnvenccecenerceenecs 12

es I, dirs oe hess occnccketbsnsesacheeraseses ]

Other Authorities

4 William Blackstone,

Commentaries on the laws of England 343

0 GRETA mete GNIS NN ere AAO Nor RRPRRE RAIS FeOEO IN CO D 4

Akhil Amar,

Reinventing Juries: Ten Suggested Reforms,

28 U.C. Davis L. Rev. 1169 (1995)................... 23

B. Cardozo,

The Nature of the Judicial Process 149 (1921)20

Vv

Dennis J. Devine et al.,

Jury Decision Making: 45 Years of Empirical

Research in Deliberating Groups,

7 Psychol. Pub. Pol’y & L. 622 (2001).............. 22

Ethan J. Leib,

Supermayjoritarianism and the American

Criminal Jury,

33 Hastings Const. L. Q. 141 (2006).......... 18, 22

Harry Kalven, Jr. & Hans Zeisel,

The American Jury 488 (1966)........................ 21

Michael H. Glasser,

Letting the Supermayjority Rule:

Nonunanimous Jury Verdicts in Criminal

Trials,

24 Fla. St U. L. Rev. 659 (1997)................. 22, 23

v1

STATEMENT OF THE CASE

A. Statement of the Facts

Because the issues in this case are legal ones,

the facts can be stated briefly.

Petitioner was convicted of multiple sexual

felonies against his stepdaughter. In his petition,

he complains that the victim “was unable to pin-

point how old she was when any of the particular

events she described allegedly occurred; she es-

timated the dates within two or three year peri-

ods.” (Pet. Cert. 4). But that is not unusual with

young victims of sexual abuse. Here, the victim

was in first or second grade when some of the

abuse occurred, but she was able to describe spe-

cific acts of abuse in detail and identify where in

the family home they occurred. She described two

acts of abuse, one involving oral sodomy, that

took place in the defendant’s bedroom; one that

happened in her bedroom at night; one that oc-

curred while she and petitioner were watching a

movie and he touched her under a blanket; one

that took place while she was taking a bath; and

another that occurred in the garage. (Tr. 115-19,

120-23, 123-127, 129-34, 134-141, 142-45.) In all

of those incidents, the victim was in the primary

grades. (Tr. 117, 123, 134, 141, 146.) Two addi-

tional incidents occurred after the victim was

older and in the seventh or eighth grade. One of

those incidents formed the basis for a sodomy

2

charge and the other for a rape charge. (Tr. 158-

60, 161-65.)

Petitioner notes that, when first contacted by

the police, the victim “was a runaway.” (Pet. Cert.

3.) Apparently, petitioner means to imply that

the victim had a motive to accuse him falsely. By

the time she testified at trial, however, the vic-

tim—who had started using methamphetamine

and had dropped out of school in the eighth

grade—was 18, in schoo] at a community college,

had completed drug and alcohol treatment, had

been off drugs for a year and a half, and devoted

time to speaking to other teens about recovery.

(Tr. 169.)

B. Trial court proceedings

The state charged petitioner with five counts

of first-degree sexual abuse, Or. Rev. Stat. §

163.427, two counts of first-degree sodomy, Or.

Rev. Stat. § 163.405, and one count of first-degree

rape, Or. Rev. Stat. § 163.375. (App. Br. 1, ER 1-

2.) Petitioner requested that the jury be in-

structed that: “This being a criminal case, each

and every juror must agree on your verdict.” (Pet.

Cert., App. 6a). In requesting the instruction, pe-

titioner relied on Blakely v. Washington, 542 U\S.

296, 301 (2004), and specifically on the following

sentence taken from that opinion:

This rule [that, generally, any fact

that increases the penalty for a crime

3

beyond the statutory maximum must

be submitted to a jury, and proved

beyond a reasonable doubt] reflects

two longstanding tenets of common-

law criminal jurisprudence: that the

“truth of every accusation” against a

defendant “should afterwards be con-

firmed by the unanimous suffrage of

twelve of his equals and neighbours,”

4 W. Blackstone, Commentaries on

the Laws of England 343 (1769) * * *.

(Emphasis added.)

The trial court refused to give the requested

jury instruction because it would not “comply

with Oregon law[.]” (Pet. Cert., App. 6a.) The

trial court also concluded that Blakely was inap-

posite: “I don’t think Blakely actually speaks to

this. * * * It was addressing, of course, whether

or not a jury should weigh in on factors that re-

lated to enhancements of sentencing. * * * I don’t

read this as a decision by the United States Su-

preme Court that every state must have ** *

unanimous verdicts.” (Pet. Cert., App. 6a-7a.)

The jury convicted petitioner of all the

charges, but none of the verdicts was unanimous.

Only ten jurors voted to convict on each charge.

(Tr. 429-30.)

4

C. State appellate court proceedings

Petitioner appealed, contending, among other

claims, that the trial court had erred in refusing

to give his requested jury instruction. (App. Br.

11.) The state Court of Appeals rejected that

claim. The court cited Article I, section 11, of the

Oregon Constitution, which provides in part,

that:

in the circuit court ten members of

the jury may render a verdict of

guilty or not guilty, save and except a

verdict of guilty of first degree mur-

der, which shall be found only by

unanimous verdict, and not other-

wise].]

(Pet. Cert., App. 6a).

On appeal, as at trial, petitioner relied on

Blakely to support his claim. He relied on the

same sentence from Blakely that is quoted above.

(Pet. Cert. App. 6a, (quoting Blakely, 542 U.S. at

301 (in turn quoting 4 William Blackstone, Com-

mentaries on the laws of England 343 (1769)))).

Relying on Apodaca, the Court of Appeals re-

jected his argument.

Necessarily implicit in [petitioner’s]

argument is the premise that the

Court’s observation in Blakely had

the effect of overruling Apodaca v.

5

Oregon, 406 U.S. 404 (1972). In Apo-

daca, the Court held that the permis-

sibility of less-than-unanimous jury

verdicts under Article I, section 11,

did not violate the Sixth Amendment

to the United States Constitution.

Apodaca, 406 U.S. at 407-14.

(Pet. Cert., App. 7a) (footnote omitted).

The state Supreme Court denied review with-

out opinion. (Pet. Cert., App. 8a).

SUMMARY OF ARGUMENT

Petitioner asks this Court to revisit. and over-

rule a decision it rendered thirty-seven years ago,

even though this Court repeatedly has cited that

decision and its conclusion without reservation,

and Oregon has relied on that decision since

1972. Principles of stare decisis counsel that this

Court should not reconsider Apodaca unless peti-

tioner can make a persuasive showing that the

Court’s earlier decision is incorrect. Petitioner

has not made that showing here. For that reason,

this Court should do what it has done in other re-

cent cases contending that the Sixth Amendment

requires unanimous jury verdicts in state court

criminal cases: deny the petition.!

| Lee v. Louisiana, 129 S. Ct. 130 (2008) (No. 07-

1523); Howard v. Oregon, 129 S. Ct. 633 (2008) (No.

08-6449).

6

In arguing that Apodaca is wrong and that

this Court should grant certiorari to overrule it,

petitioner relies on this Court’s recent quotations

from Blackstone, who commented that the truth

of every accusaticn against a criminal defendant

should be confirmed by the unanimous suffrage of

twelve of his equals and neighbors. Petitioner

contends that Apodaca is “squarely inconsistent”

with those recent decisions quoting Blackstone.

But there is no inconsistency. The recent deci-

sions dealt with other issues, and petitioner takes

the quotations out of context.

History does not support overruling the inter-

pretation of the Sixth Amendment that this

Court adopted in Apodaca. As the Court recog-

nized in that decision, the common law at the

time of the Founding required a jury verdict to be

unanimous. But it does not follow from that his-

torical fact that a unanimous jury became a con-

stitutional guarantee.

The Sixth Amendment does not explicitly in-

clude the right to a unanimous jury verdict, and

this Court has held that other settled features of

the common-law jury, including the requirement

of a 12-person jury, are not included in the Sixth

Amendment right to a jury trial. Indeed, the

Sixth Amendment was adopted after the Con-

gress rejected an earlier version of the amend-

ment that specifically would have required

unanimous verdicts. Although the reason for that

7

rejection is not clear, this Court has held that the

more plausible explanation is that Congress in-

tended that omission to have some substantive

effect. Petitioner would give it none.

In addition, although the origins of the com-

mon-law rule requiring unanimous verdicts are

unclear, all the possible rationales are outmoded.

Adhering to them would be a matter of empty

formalism. In short, history offers little support

for petitioner’s claim that the Sixth Amendment

includes a right to unanimous jury verdicts in

criminal cases in state court.

Finally, nothing in the empirical research on

jury dynamics compels a conclusion that non-

unanimous juries infringe on Sixth Amendment

rights. Studies show little disparity in delibera-

tion time between juries required to decide

unanimously and those that do not deliberate

under that requirement. To the extent there is

any disparity in the length or robustness of delib-

erations, that disparity does not affect the accu-

racy of the ultimate verdict. At most, considered

as a whole, the empirical research simply illus-

trates what this Court held in Apodaca: States

may reasonably differ on the value of requiring

unanimity. In sum, petitioner offers scant basis

for this Court to revisit and overturn decades-old

precedent. This Court should decline the invita-

tion.

8

REASONS FOR DENYING THE PETITION

The Sixth Amendment provides, in perti-

nent part:

In all criminal prosecutions, the ac-

cused shall enjoy the right to a

speedy and public trial, by an impar-

tial jury of the State and district

wherein the crime shall have been

committed, which district shall have

been previously ascertained by law *

* *

U.S. Const. amend. VI. In Apodaca, this Court

specifically upheld Oregon’s state constitutional

practice that allows juries to decide cases by 10-2

or 11-1 votes as well as unanimously. 406 U.S.

A404.

A. Stare decisis requires that petitioner pro-

vide a compelling justification for over-

ruling Apodaca.

This Court often has stressed the importance

of stare decisis, stating that “the doctrine * * * is

of fundamental importance to the rule of law”

and that, accordingly, “any departure from the

doctrine * * * demands special justification.”

Welch v. Dep't. of Highways & Pub. Transp., 483

U.S. 468, 494-95 (1987), (quoting Arizona v. Rum-

sey, 467 U.S. 203, 212 (1984)). See also Akron v.

Akron Center for Reproductive Health, Inc., 462

9

U.S. 416- 419-20 (1983) (doctrine of stare decisis

“demands respect in a society governed by the

rule of law.”).

The Court has set the bar very high for over-

ruling its prior decisions: “Adherence to prece-

dent promotes stability, predictability, and re-

spect for judicial authority. For all of these rea-

sons, we will not depart from the doctrine of stare

decisis without some compelling justification.”

Hilton v. S. C. Pub. Rys. Comm’n, 502 U.S. 197,

202 (1991) (emphasis added; internal citations

omitted).

Among the “factors in deciding whether to ad-

here to the principle of stare decisis” are “the an-

tiquity of the precedent,” and “the reliance inter-

ests at stake[.]” Montejo v. Loutsiana, 129 S. Ct.

2079, 2088-89 (2009) (No. 07-1529). As noted,

Apodaca is thirty-seven years old, and Oregon

has relied on it since 1972 to instruct jurors in

felony trials that they need not return unanimous

verdicts.

“Where a decision has ‘been questioned by

Members of the Court in later decisions and [has]

defied consistent application by the lower courts,’

these factors weigh in favor of reconsideration.”

Pearson v. Callahan, 129 S. Ct. 808, 829-30

(2009) (No. 07-751), (quoting Payne v. Tennessee,

501 U.S. 808, 829-30 (1991). The decision in Apo-

daca is unambiguous and easy to apply. Members

10

of this Court have not questioned Apodaca in

subsequent decisions; on the contrary, this Court

repeatedly has reiterated that decision’s holding

without expressing any reservation. Schad v. Ari-

zona, 501 U.S. 624, 634 n. 5 (1991) (“a state

criminal defendant, at least in noncapital cases,

has no federal right to a unanimous jury ver-

dict.”); Burch v. Louisiana, 441 U.S. 130, 136

(1979) (Court “conclude[d] in 1972 that a jury’s

verdict need not be unanimous to satisfy consti-

tutional requirements”); McKoy v. North Caro-

lina, 494 U.S. 433, 469 (1990) (Scalia, J., dissent-

ing) (noting that the Court has “approved ver-

dicts by less than a unanimous jury,” (citing Apo-

daca)); Brown v. Louisiana, 447 U.S. 323, 330-31

(1980) (Court has held that “the constitutional

guarantee of trial by jury” does not prescribe “the

exact proportion of the jury that must concur in

the verdict,” citing Apodaca).

Because of the respect that stare decisis de-

mands, because Apodaca has been settled law for

thirty-seven years, and because this Court subse-

quently has not questioned that decision but in-

stead has cited its holding without reservation,

this Court should consider overruling it only if

petitioner can provide a “compelling justification”

for doing so. Hilton, 502 U.S. at 202. He has not

done so, and this Court should not grant certio-

rari.

1]

B. Apodaca is not inconsistent with Blakely

or Apprendi.

In urging this Court to overrule Apodaca, peti-

tioner relies heavily on this Court’s recent deci-

sions in Blakely and Apprendi v. New Jersey, 530

U.S. 466 (2000), which he claims are flatly incon-

sistent with Apodaca. Petitioner relies especially

on the statement in Blakely that the Sixth

Amendment requires “that the ‘truth of every ac-

cusation’ against a defendant ‘should afterwards

be confirmed by the unanimous suffrage of twelve

of his equals and neighbours.” (Pet. Cert. App.

6a, (quoting Blakely, 542 U.S. at 301 (in turn

quoting Blackstone, supra, at 343) (emphasis

added in Pet. Cert.). Apparently, petitioner be-

heves that, when the Court quoted Blackstone in

its discussion of when the Sixth Amendment re-

quires factual findings to be made by a jury

rather than the court, this Court also intended to

interpret the Sixth Amendment to require

unanimous jury verdicts in state criminal cases.

But neither Biakely nor Apprendi dealt with

the issue of whether the Sixth Amendment re-

quires unanimous jury verdicts. The issue in

Blakely and Apprendi was whether basing an en-

hanced sentence on fact-finding by the trial court

violated the petitioner’s Sixth Amendment right

to trial by jury. 542 U.S. at 298; 530 U.S. at 468-

69). Thus, when the Court in Blakely referred to

the “long standing tenet” that the “truth of every

12

accusation” against a defendant should be “con-

firmed by the unanimous suffrage of twelve of his

equals and neighbours,” 542 U.S. at 301 (quoting

Blackstone), it did so in a strikingly different con-

text, involving issues quite different than the one

presented here. Apodaca simply is not “squarely

inconsistent” with Blakely and Apprendi.’

? Petitioner also relies on other decisions from this

Court that, according to him, have “held or assumed *

* * that the Sixth Amendment requirels] unanimity

for a criminal conviction.” (Pet. Cert. 9) (citations

omitted). Those decisions offer little support for peti-

tioner’s cause. In Maxwell v. Dow, 176 U.S. 581

(1900), and Patton v. United States, 281 U.S. 276

(1930), the discussions of jury unanimity were dicta.

The issue in Maxwell was whether an eight-person

jury was constitutionally permissible in state crimi-

nal trials. 176 U.S. at 582. In Patton, the issue was

whether the criminal defendant could agree to an 11-

person jury. 281 U.S. at 286. Thompson v. Utah, 170

U.S. 343, 352 (1898), cited by petitioner, also involved

an eight-person jury. Andres v. United States, 333

U.S. 740 (1948), involved a prosecution for a crime

committed on federal property. In that case, the

Court concluded, rather summarily, that “[u)nanimity

in jury verdicts is required where the Sixth and Sev-

enth Amendments apply,” citing only American Pub.

Co. v. Fisher, 166 U.S. 464 (1897). Andres, 333 U.S. at

748 & n. 13. In American Pub. Co., which dealt with

the right to jury trial under the Seventh Amendment,

the Court specifically noted that “the power of a state

13

C. Petitioner’s historical arguments provide

no persuasive reason for this Court to re-

visit the result in Apodaco.

Petitioner also relies on history, asserting that

it has been “settled’ since ‘the latter half of the

14 century * * * that a verdict had to be unani-

mous’ to convict someone of a crime and that this

requirement ‘had become an accepted feature of

the common-law jury by the 18" century.” (Pet.

Cert. 9, (quoting Apodaca, 406 U.S. at 407-08 &

n. 2).) The Court accepted that reading of history

in Apodaca. That does not, however, equate to pe-

titioner’s suggestion that, if a feature of the com-

mon-law jury was settled at the time the Bill of

Rights was adopted, it must have been incorpo-

rated in the Sixth Amendment.

This Court clearly has rejected petitioner’s ap-

proach, because it has held that not all features

of the common-law jury are included in and guar-

anteed by the Sixth Amendment. Notably, al-

though the 12-person jury also was an accepted

feature of the common-law jury at the time of the

Founding—and although Blackstone mentions

that numerical common-law requirement in the

to change the rule in respect to unanimity of juries is

not before us for consideration.” 166 U.S. at 468 (cita-

tions omitted). When that issue came before the

Court in Apodaca, the Court ruled that unanimity is

not required under the Sixth Amendment.

14

same sentence from his Commentaries that peti-

tioner relies on and that this Court quoted in

Blakely and Apprendi—this Court has held that

the Sixth Amendment does not require 12-person

juries. Williams v. Florida, 399 U.S. 78, 86

(1970).

The Court reviewed the relevant constitu-

tional history in detail in Williams, 399 U.S. at

94-99, and summarized it in Apodaca, 406 US. at

409. The history underlying the Sixth Amend-

ment “casts considerable doubt on the easy as-

sumption that if a given feature existed in a jury

at common law in 1789, then it was necessarily

preserved in the Constitution” Williams, 399 U.S.

at 92-93. Instead, although the historical record

can lead to competing conclusions, the stronger

inference is that one of the features of the com-

mon-law jury that the Framers did not intend to

include in the Sixth Amendment was the re-

quirement of a unanimous jury verdict.

In Apodaca, this Court summarized the his-

tory of the Sixth Amendment. The Court con-

cluded that “[t]he most salient fact in the scanty

history of the Sixth Amendment” is that, al-

though “as it was introduced * * *, the proposed

Amendment provided for trial ‘by an impartial

jury of the freeholders of the vicinage, with the

requisite of unanimity for conviction * * * and

other accustomed requisites,” ultimately the

unanimity and “accustomed requisites” provi-

15

sions were not included. 406 U.S. at 409 (empha-

ses added; citation omitted). Indeed, the confer-

ence committee “refused to accept not only the

original * * * language but also an alternate sug-

gestion * * * that juries be defined as possessing

‘the accustomed requisites.” Jd. (citation omit-

ted).

This Court noted in Apodaca that, as it had

“observed in Williams, one can draw conflicting

inferences from this legislative history.” 406 U.S.

at 409.

One possible inference is that Con-

gress eliminated references to una-

nimity and to the other “accustomed

requisites” of the jury because those

requisites were thought already to be

implicit in the very concept of jury. A

contrary explanation, which we found

in Williams to be the more plausible,

is that the deletion was intended to

have some substantive effect.

Id. at. 409-10, (citing Williams, 399 U.S. at 96-97

(emphasis added)).*

-_- _——

* Amici Charles Hamilton Institute for Race and

Justice, et al., accuse the Apodaca plurality of having

ignored and “broke[n] [with] literally centuries of

well-settled common law precedent requiring unani-

mous criminal verdicts[.]” (CHHIRJ Br. 5). It is more

16

Thus, far from the history of the Sixth Amend-

ment supporting petitioner’s claim that the provi-

sion includes a right to a unanimous jury verdict

in state criminal trials, this Court has concluded

that the “more plausible” explanation for the fact

that the Amendment does not explicitly include

such a right is that the deletion “was intended to

have some substantive effect.” Petitioner would

have the Court overlook and override that in-

tended effect.

In Apodaca, this Court also reviewed the rea-

sons why the unanimous jury verdict had become

a settled feature of the common law. As this

Court observed in Williams, 399 U.S. at 89—with

regard to the requirement of a 12-person jury—

the requirement of a unanimous jury verdict ap-

pears to have been a “historical accident” that

had its origins in outmoded medieval concepts.

This Court has identified “[a]t least four [pos-

sible] explanations * * * for the development of

unanimity” at common law. Apodaca, 406 U.S. at

407 n. 2. All of them are either outmoded or his-

torical accidents. The first explanation is that

accurate to say that Apodaca reviewed that history,

but found that it did not lead to the conclusion that

any such common-law right is included in the Sixth

Amendment. Amici and petitioner ask this Court to

plow ground that the Court has already been over in

detail.

17

“unanimity developed to compensate for the lack

of other rules insuring that a defendant received

a fair trial.” Jd. (citations omitted). The “second

theory is that unanimity arose out of the practice

in the ancient mode of trial by compurgation of

adding to the original number of 12 compurgators

until one party had 12 compurgators supporting

his position; the argument is that when this

technique * * * was abandoned, the requirement

that one side obtain the votes of all 12 jurors re-

mained.” Jd. (citations omitted). “A third possibil-

ity is that unanimity developed because early ju-

ries, unlike juries today, personally had knowl-

edge of the facts of a case,” and that “the medie-

val mind assumed that there could be only one

correct view of the facts[.]” Therefore, if some or

all of the jurors “declared the facts erroneously,

they might be punished for perjury.” Jd. (citations

omitted). “The final explanation is that jury una-

nimity arose out of the medieval concept of con-

sent.” Id. To the medieval mind, the concept of

consent “carried with it the idea of * * * unanim-

ity[.])” Jd. (internal quotation marks and citation

omitted). Even in 18” century America, there was

“a similar concern that decisions binding on the

community be taken unanimously.” Jd. (citation

omitted).

1?

Those historical reasons for the common-law

requirement of a unanimous jury verdict have lit-

tle, if any, force now. Instead, “[m]any of the pos-

sible reasons for the unanimity requirement are

ones that are substantially less persuasive now—

and the Court itself has recognized this.” Ethan

J. Leib, Supermajoritarianism and the American

Criminal Jury, 33 Hastings Const. L. Q. 141, 143

(2006). “If unanimity developed at common law

‘to compensate for the lack of other rules insuring

that a defendant received a fair trial, American

criminal procedure now has many more substan-

tial protections for defendants.” Leib, supra, at

143 (quoting Apodaca, 406 U.S. at 407 n. 2). If

unanimity “arose out of the practice in the an-

cient mode of trial by compurgation”—a mode of

trial where certain kinds of witnesses essentially

became jurors—that practice “has very little rele-

vance to contemporary trials, where we’d never

allow a witness on the jury|.]” Leib, supra, at 148.

“(Wje should have no allegiance to a decision rule

that arose out of a jury practice that has so little

to do with our own.” Jd. “If the unanimity re-

quirement arose out of the medieval idea that

reasonable people cannot disagree and that mi-

nority jurors must be iying, we must certainly

abandon it in our pluralistic society.” Jd. (cita-

tions omitted throughout). Given the outdated ra-

tionales for the common-law requirement of una-

nimity, reading it into the Sixth Amendment

19

would be to “ascribe a blind formalism to the

Framers|.]” Williams, 399 U.S. at 103.

Thus, neither the history of the Sixth

Amendment nor the reasons for the common-law

requirement of jury unanimity provide any “com-

pelling justification,” Hilton, 502 U.S. at 202, to

disregard principles of stare decisis and overrule

Apodaca. Instead, as this Court has recognized,

Apodaca’s treatment of history parallels the

Court’s treatment of history in Williams. Burch,

441 U.S. at 136 (noting that “[a] similar analysis”

to that in Williams led the Court in Apodaca to

conclude “that a jury’s verdict need not be

unanimous to satisfy constitutional require-

ments, even though unanimity had been the rule

at common law”); Ludwig v. Massachusetts, 427

U.S. 618, 625 (1976) (a “[sJimilar analysis [to that

in Williams] led to the holding in Apodaca that

the jury’s verdict need not be unanimous”).

D. Recent empirical research is not relevant

to whether this Court should revisit Apo-

daca and, in all events, provides no per-

suasive support for petitioner’s claim.

Turning from history, petitioner contends

(Pet. 22) that recent empirical research compar-

ing the experiences of unanimous and non-

unanimous juries “confirms the wisdom of the

historical unanimity requirement” and demon-

strates that this Court’s decision in Apodaca

20

cannot stand. Yet, as discussed above, before

this Court revisits Apodaca, petitioner must of-

fer more than a suggestion that jury unanimity

may be “wiser” than non-unanimous juries. As

this Court has recognized, “no judicial system

could do society’s work if it eyed each issue

afresh in every case that raised it.” Planned Par-

enthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833, 854 (1992), (citing B. Cardozo, The

Nature of the Judicial Process 149 (1921)). In-

stead, when this Court re-examines a prior hold-

ing, “its judgment is customarily informed by a

series of prudential and pragmatic considera-

tions designed to test the consistency of overrul-

ing a prior decision with the ideal of the rule of

law([.]” Id. at 854-55.

Recent empirical research demonstrating that

a state’s decision to permit non-unanimous juries

may affect the dynamics of jury deliberations

provides no basis to revisit long-standing prece-

dent. The question here—as it was in Apodaca—

is whether the Sixth Amendment prohibits non-

unanimous juries; nothing about that constitu-

tional question has changed in the 37 years since

this Court decided Apodaca. That petitioner can

point to some studies suggesting that states

should not permit non-unanimous juries reasons

says nothing about whether the states cannot

permit non-unanimous juries. States remain free

to make policy choices so long as those choices do

21

not infringe upon constitutional protections and

liberties. Causey, 505 U.S. at 849. In all events,

nothing since Apodaca—empirically or experien-

tially—has demonstrated that this Court’s deci-

sion in Apodaca is unworkable or unsound, or

suggests that Apodaca was based on a fundamen-

tally mistaken, or subsequently discredited, view

of jury dynamics.

Petitioner relies (Pet. 23) on conclusions from

various studies that jurors who are not required

to achieve unanimity evaluate the evidence less

thoroughly, spend less time deliberating, and

take fewer ballots. In petitioner’s view, that evi-

dence undermines this Court’s conclusion in Apo-

daca that a unanimity requirement “does not ma-

terially contribute to the exercise” of a jury’s

“commonsense judgment.” 406 U.S. at 410. But

studies show that little disparity actually exists

in the duration of deliberations and—even more

critically—that to the extent that there is any

disparity in the length or robustness of delibera-

tions, that disparity does not affect the accuracy

of the ultimate verdict.

The “most comprehensive jury study” con-

ducted in the past thirty years has shown a

“minimal disparity” between the amount of time

that juries spend deliberating when unanimity is

required and the amount of time they spend

when unanimity is not required. Harry Kalven,

Jr. & Hans Zeisel, The American Jury 488 (1966);

22

Michael H. Glasser, Letting the Supermayjority

Rule: Nonunanimous Jury Verdicts in Criminal

Trials, 24 Fla. St U. L. Rev. 659, 672 (1997). That

same study also demonstrates that in nine out of

ten cases, the result of the first ballot is the same

as the verdict. Jd.; see also Dennis J. Devine et

al., Jury Decision Making: 45 Years of Empirical

Research in Deliberating Groups, 7 Psychol. Pub.

Pol’y & L. 622, 690 (2001). Thus, to the extent

that there is any disparity in the length of delib-

eration, that time is often spent trying to con-

vince one or two holdouts. And in jurisdictions

that require jury unanimity, those holdout jurors

often simply succumb to the “pressure for unani-

mous agreement|(.]” Leib, supra, at 144-45. Thus,

contrary to petitioner’s assumptions, a jury una-

nimity requirement does not necessarily guaran-

tee or promote “open-minded debate” in an ide-

ally deliberative environment; rather, the time

spent attempting to achieve unanimity is often

spent pressuring and cajoling the few holdouts

into acquiescence.

Of greater significance, however, is that the

degree and nature of the deliberations is not di-

rectly proportional to the accuracy of any verdict.

Most experts agree that the accuracy of the ulti-

mate verdict is not contingent upon the whether

jury unanimity is required. See Leib, supra, at

144 (“most agree that the outcomes of verdicts do

not significantly vary” depending upon whether

23

there exists a unanimity rule or not). Permitting

juries to reach non-unanimous verdicts, there-

fore, does not undermine the ultimate purposes of

the jury: to safeguard a defendant against the

corrupt or overzealous prosecutor and the biased

judge, and to assure a fair and equitable resolu-

tion of factual issues. Apodaca, 406 U.S. at 410;

Gasoline Products Co. v. Champlin Co., 283 U.S.

494, 498 (1931).

Petitioner further contends (Pet. 25) that al-

lowing non-unanimous jury verdicts marginalizes

jurors who are members of minority groups. Peti-

tioner again relies on empirical research that, in

his view, demonstrates that the non-unanimous

jury scheme in effect silences dissenting and mi-

nority voices. But unanimity cannot guarantee

mutual tolerance. Akhil Amar, Reinventing Ju-

ries: Ten Suggested Reforms, 28 U.C. Davis L.

Rev. 1169 (1995). That is, unanimity simply does

not guarantee that juries will tolerate opposing or

minority views or listen to reason and consider

the evidence. In reality, whether the minority is

likely to speak up or not depends more upon the

different personalities of the jurors. Glasser, su-

pra, at 674. In fact, it is at least equally likely

that the non-unanimous jury system actually en-

courages the minority to speak up, because they

need to convince fewer other jurors to come te

their side. Id.

24

In sum, to support overruling a constitutional

decision that Oregon has been relying upon for 37

years, petitioner must provide something more

compelling than some recent analyses of jury be-

havior. That is particularly true when the evi-

dence petitioner relies upon presents an incom-

plete picture of how the non-unanimity require-

ment affects jury deliberations. Wiser or not,

unanimous juries are not a Sixth Amendment

mandate. This Court thus need not reconsider the

system that Oregon’s Constitution requires it to

follow and that this Court has already upheld.

CONCLUSION

Petitioner asserts that “[t]wo states in our Un-

ion have simply decided to violate criminal de-

fendants’ fundamental right to jury trial until

this Court tells them they may no longer do so.”

(Pet. Cert. 30.) That accusation is unfounded. It

is more accurate to say that those states have re-

lied on this Court’s decades-old case law in per-

mitting juries in most felony cases to return less-

than-unanimous verdicts. Petitioner asks this

Court to grant his petition and reconsider Apo-

daca based on quotations from Blakely and Ap-

prendi that are taken out of context, history that

this Court has already does not support peti-

tioner’s argument, and empirical research that

does not yield any clear conclusion that unani-

mous jury verdicts are necessarily preferable, let

alone constitutionally required. As it did twice in

Pe

2008, note 1, supra, this Court should decline the

invitation and deny the petition.

Respectfully submitted,

JOHN R. KROGER

Attorney General of Oregon

MARY H. WILLIAMS

Deputy Attorney General

JEROME LIDZ

Solicitor General

JANET A. METCALF

ANNA M. JOYCE

Assistant Attorneys General

Counsel for Respondent

State of Oregon

June 29, 2009