Petition for Writ of Certiorari — Herrera v. Oregon

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Supreme Court, U.S.

P eee

(ree

e) i LL. oe ® a

Jn the Supreme Court of the Gnited States

ALONSO ALVINO HERRERA,

Petitioner,

V.

STATE OF OREGON,

Respondent.

On Petition for a Writ of Certiorari to

the Court of Appeals of the State of Oregon

PETITION FOR A WRIT OF CERTIORARI

EUGENE VOLOKH

Counsel of Record

Professor of Law

UCLA School of Law

Academic Affiliate

Mayer Brown LLP

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-3926

volokh@law.ucla.edu

Counsel for Petitioner

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

QUESTION PRESENTED

In McDonald v. City of Chicago, 130 8S. Ct. 3020

(2010), this Court held that “incorporated Bull 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.”

This Court has also held that the Sixth Amend-

ment requires a unanimous jury verdict to convict a

person of a crime. The question presented is:

1. Whether the Sixth Amendment, as incorpo-

rated against the States by the Fourteenth, hkewise

requires a unanimous jury verdict to convict a person

of a crime.

re)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................ce eee Genres i

SPRY PAG) F RAODECL 2 LEGS .....cccccsccccccoscscssocccscosesseees Vv

EE EME WY 55 c0sncsccavecnsssvasessvecesesesesctaccesssucsucs l

cau ch aauysasesvnvannsesaeasaaviansaks ]

CONSTITUTIONAL PROVISIONS

as cscs scan nnaven stay cnsiinsetaedenesvesssubnesanne ]

os eos calcapveasausseusuaussonchigavssnaient 2

REASONS FOR GRANTING THE PETITION .......... 5

{. The Oregon Nonunanimous Jury Rule Is

Inconsistent with This Court’s Holding in

PectPOnald V. City Of CRicago. ..........cccccccecorscsssevseeveD

Il. The Oregon Nonunanimous Jury Rule Is

Inconsistent with the Understanding of the

Jury Trial Right as of the Ratification of

the Sixth Amendment, as of the

Ratification of the Fourteenth Amendment,

and Since Then.......... MC cena cae scan dacecanstis 1]

A. The Common Law and Early

Constitutional Commentary Uniformly

Understood “Trial by Jury” To Require

a Unanimous Verdict in Criminal

alas wh ihe) adaclavanensatenadend inion 12

B. The “Trial by Jury” Was Understood as

Requiring a Unanimous Verdict at the

Time the Fourteenth Amendment Was

ea sce beaaeausnendas 21

. The “Trial by Jury” Has Been Seen as

Requiring Unanimity Since the

Enactment of the Fourteenth

oe cas. Glaicu su casrasenoereieee 23

OQ

il

TABLE OF CONTENTS—continued

Page

I11.This Court’s Review Is Warranted Because

the Oregon and Lou'siana Supreme Courts

Cannot Revisit the Issue Until This Court

PP cc ccucuscsanvcnsuctieeesacaieekin Mada ee a ceginc wr esiisens 25

IV. Stare Decisis Concerns Do Not Justify

Preserving the Apodaca Anomaly. ...................065. 27

A. Justice Powell’s Solo Concurrence in

Apodaca Is Not Entitled to Stare Decisis

ee eee ee Nr ya

B. The Suggestion by the Apodaca

Plurality That Unanimity Is Not

Required Even in Federal Criminal

Trials Is Not Entitled to Stare Decisis

~]

PGS ccayaacaxeeesscackex testes tania reaase casemate cutueeneeastoaaes 30

C. Revisiting Apodaca Would Not Unduly

Undermine Reliance Interests. .......................31

CI ca nercce ca canassasunuesaceracescsaceceavancccxdavaceranee

APPENDIX A—Oregon Court of Appeals

5 PS a ee ae a ees eet la

APPENDIX B—Oregon Supreme Court Denial

of Review ......... IEP AP renee IO A tay ADDER ePID 3a

APPENDIX C—Trial Court Denial of Motion

for Unanimous Verdict Instruction .....................:0608 da

APPENDIX D—Announcement of

Nonunanimous Vote on the Verdict ...................060000 62

APPENDIX E—Preservation of Objection to

Nonunanimous Jury Instruction .............c.cceeeeece ener eee 7a

APPENDIX F—Preservation of Argument in

Petitioner’s Brief in the Oregon Court of

PRs ooooo sah ic saci eigenen nie 9a

hy

TABLE OF CONTENTS-—continued

Page

APPENDIX G—Preservation of Argument in

Petitioner’s Petition for Review to the Oregon

Sou MOINS. 10-22; acc ain ca vssau scans lassereees eiceetarsoenancace l4a

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

PEE ox Uascsah esis sapvcees Sipueaedvavéen eecdaneueienadateaieramaaen 28

Agostini v. Felton, 521 U.S. 203 (1997) ............. eee 25

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

Apprendi v. New Jersey, 530 U.S. 466 (2000)... 11, 24,

26

Arizona v. Gant, 129 S. Ct. 1710 (2009) ..............0..... 28

Atkins v. Virginia, 536 U.S. 304 (2002)..................... 26

Baldwin v. New York, 399 U.S. 66 (1969) ................... 4

Batson v. Kentucky, 476 U.S. 79 (1986)...................06 6

Benton v. Maryland, 395 U.S. 784 (1969) ................... 7

Betis v. Brady, 316 U.S. 465 C1942) wccvisscciccivcssiscesecess 32

Blakely v. Washington, 542 U.S. 296 (2004) .....passim

Burch v. Louisiana, 441 U.S. 130 (1979)...............066 24

Calcano v. United States, 543 U.S. 801 (2004)......... 33

Citizens United v. FEC, 130 S. Ct. 876 (2010).......... 29

vl

continued

TABLE OF AUTHORITIES

Page(s)

Commonwealth v. Loadholt, 923 N.E.2d 1037 (Mass.

RNS ys ea Lah usecase chaspaanierescuucecaes isievenases 26

Corona v. Florida, 541 U.S. 980 (2004) ......0...0..0.... ...88

Crawford v. Washington, 541 U.S. 36 (2004).... 12, 29,

33

Cunningham vy. California, 549 U.S. 270 (2007)......31

District of Columbia v. Clawans, 300 U.S. 617 (1937)

Tge Mee Tete Att ad tanL er eva tas vei nel cigs us cited xeshaexanstsssathesaureesvaesseuies 4

District of Columbia v. Heller, 1288S. Ct. 2783 (2008)

Dowling v. State, 13 Miss. 664 (1846) ................ 16, 17

Gideon v. Wainwright, 372 U.S. 335 (1963)..............32

Gor7 ¥. Ohio, 641 U.S. 1088 (2OO4).......ccsccccccsccenceeses08

Griffith v. Kentucky, 479 U.S. 314 (1987) .................382

Hawaii v. Mankichi, 190 U.S. 197 (1908) ......0.. 5

Mill v. People, 16 Mich. 351 (1868) ............................ 2)

In re Florida Rules of Criminal Procedure, 272 So. 2d

A REESE ERR ENS RR: PnP en aia opm AE 29

Johnson v. Commonwealth, 591 S.E.2d 47 (Va. 2004)

vill

TABLE OF AUTHORITIES—continued

Page(s)

Johnson v. Virginia, 544 U.S. 901 (20085) ................. 26

Ko v. New York, 542 U.S. 901 (2004) ..0.0. ce. 33

LaFontaine v. United States, 543 U.S. 801 (2004) ...33

Lewis v. United States, 518 U.S. 322 (1996) ............. 23

Linkletter v. Walker, 381 U.S. 618 (1965) .................32

Malloy v. Hogan, 378 U.S. 1 (1964) ....... eee eee 6

Mapp v. Ohio, 367 U.S. 6438 (1961) ............ceccceeeeeseenes 32

Marbury v. Madison, 5 U.S. (1 Cranch) 137............. 33

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)

ys ua uacagh ani ahangueesauuniaqkaaseneaniaastilekesiatialsavauunaebalaan passim

Montejo v. Louisiana, 129 S. Ct. 2079 (2009) ........... 31

Ohio v. Roberts, 448 U.S. 56 (1980) ............. eee eee eee 33

Patterson v. McLean Credit Union, 491 U.S. 164

III ih 20s cute Fen centasnis vakadilensuatsabautbadsayasenseackartnanness 28

Payne v. Tennessee, 501 U.S. 808 (1991)...................32

Pearson v. Callahan, 129 S. Ct. 808 (2009) .............. 32

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ..30

People v. Huber, 139 P.3d 628 (Colo. 2007)............... 27

Vill

TABLE OF AUTHORITIES—continued

Page(s)

People v. Letner, 235 P.3d 62, 112 Cal. Rptr. 3d 746

CEIRE TRW OE csascisckcviccscacrerpnuhitentannentiemennane 27

Pickelsimer v. Wainwright, 375 U.S. 2 (1968) .. .......33

Pointer v. Texas, 380 U.S. 400 (1965) ...........ccce cee scenes 7

Prasertphong v. Arizona, 541 U.S. 1039 (2004)........33

PruneYard Shopping Center v. Robins, 447 U.S. 74

CEIIIGD siaiensstkescceoscbersenteosssesssst pabnaseareialpataae 1

Ring v. Arizona, 536 U.S. 584 (2002)................cceseeeee 27

Rodriguez de Quijas v. Shearson/American Express,

e., BBO VU ac OFT CRO tivities 4, 25

Sarr v. Wyoming, 543 U.S. 801 (2004) ......................83

Seminole Tribe v. Florida, 517 U.S. 44 (1996).......... 30

Shields v. California, 541 U.S. 930 (2004)................33

Siler v. Ohio, 543 U.S. 1019 (2004).....................c00002 8D

Stanford v. Kentucky, 492 U.S. 361 (1989) ............... 26

State ex rel. Smith v. Sawyer, 501 P.2d 792 (Or.

BOP FA vs kitntscocssessasenessnncdésiunsesidenabetaeee 3

Staie Oil Co. v. Khan, 522 U.S. 3 (1997) ..ececececeseeee0- 25

State v. Bacon, 702 A.2d 116 (Vt. 1997) ..............02eee 27

ix

TABLE OF AUTHORITIES—continued

Page(s)

State v. Bertrand, 6 So. 3d 738 (La. 2009) ............. oe

State v. Bowen, 168 P.3d 1208 (2007), modified on

reconsideration, 185 P.3d 1129 (2008).....................5

State v. Cobb, 198 P.3d 978 (Or. Ct. App. 2008),

review denied, 213 P.3d 578 (Or. 2009)................ J

State v. Gales, 658 N.W.2d 604 (Neb. 2003) ............. 27

State v. Mizenko, 127 P.3d 458 (Mont. 2006)............ 27

State v. Ring, 25 P.3d 1139 (Ariz. 2001)............. 26, 2/

State v. Rodriguez, 116 P.3d 92 (N.M. 2005)............ 27

Sullivan v. Louisiana, 508 U.S. 275 (1998) ..............31

Swain v. Alabama, 380 U.S. 202 (1965)............... 5, 32

Teague v. Lane, 489 U.S. 288 (1989) .................. 32, 33

United States v. Booker, 543 U.S. 220 (20085) ...........32

United States v. Burr, 25 F. Cas. 55 (C.C.D. Va.

Neen rere ccs cccstassceevesecsensssstacerscsscccsseees 14

United States v. Dixon, 509 U.S. 688 (19938)............. 28

Varacalli v. United States, 543 U.S. 801 (2004).......33

Victor v. Nebraska, 511 U.S. 1 (1994)......... Sh cs casuneines 13

Walton v. Arizona, 497 U.S. 639 (1990)...............cccee 26

x

TABLE OF AUTHORITIES—continued

Page(s)

Watt v. Alaska, 451 U.S. 259 (1981)......... Scuananaenmel 23

Watt v. Washington, 543 U.S. 976 (2004)..................383

Wedgeworth v. Kansas, 543 U.S. 801 (2004).............33

Williams v. Florida, 399 U.S.86 (1970) ..................... 17

Wolf v. Colorado, 338 U.S. 25 (1949) ..........cccc ccc ceeee 2

Constitutional Provisions

Pe a Sy Peer ee re en

CEA, Ss GG Bi Oe Kincosesacsavscccasccs cencacsentectanbeanl 29

CR. CHGET,, GE. Bye BE citstovtesemsncisccennsteoaoas 2,3

es ec MAM Wha ccncsncncecteanveusecnmpiuneanteeckueaen l

LF debs SCT. CME, FEET svctscncessctasbincisuinnssnausemsmameanaeacaes

Ly debs ees GG, Bits OF Pic Ole i kccrctestchacscecccncs een 13

Statutes

Be Se ahs We 0 le PUD dive inexscdeigeccaudcivensadetdcatusaecdevabecdeeee)

OR. REV. STAT. § 164.138..................... aastelsadaaans ako 4

OR. REV. STAT. § 819.300........... ssenassersdicaneneesecaomaauee 4

Legislative Materials

x]

TABLE OF AUTHORITIES—continued

Page(s)

1 Annals of Cong. 452 (1789) ............ccccccecceececeeeeeeeeeues 16

1989 Okla. Sess. Law Serv. Sen. Jt. Res. 17 (West),

enacted as OKLA. CONST. art. II, § 19 .......0.....00000.. 29

Cong. Globe, 39th Cong., 1st Sess. 2765 (1866)

(statement of Sen. Howard) .................ccccccceeseeeeeeees 2]

Cong. Globe, 42d Cong., Ist Sess. app. 85 (1871)

(statement of Rep. Bingham)..................c.cccccceceeeees 21

Cong. Globe, 42d Cong., 2d Sess. 844 (1872)

(statement of Sen. Sherman) .................cccccccceeeeeeee 2)

Books and Articles

JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF

GOVERNMENT OF THE UNITED STATES (Philadelphia,

WR CI FE Pencseecacdcccecececsccqandccnssacscass 13, 17

JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW

OF CRIMINAL PROCEDURE (Boston, Little, Brown

TERRES tees as ROSAS EN EID NY OO Fs AI NO 22

WILLIAM BLACKSTONE, COMMENTARIES ............. passim

,ALIF. ADMIN. OFFICE OF THE COURTS, FINAL REPORT

OF THE BLUE RIBBON COMMISSION ON JURY SYSTEM

I CI onc sscatcecéecbaevabensssboustvns 18

THOMAS M. COOLEY, A TREATISE ON THE

CONSTITUTIONAL LIMITATIONS WHICH REST UPON

THE LEGISLATIVE POWER OF THE STATES OF THE

xii

TABLE OF AUTHORITIES—continued

Page(s)

AMERICAN UNION (Boston, Little, Brown & Co.

IRS AIRS RE SRBC RR RNA irr tren ter eee aS eRe ir A 2]

NATHAN DANE, GENERAL ABRIDGMENT AND DIGEST OF

AMERICAN LAW (Boston, Cummings, Hilliard & Co.

eras 2 SC ot Se ee 15, 17

Dennis J. Devine et al., Jury Decision Making: 45

Years of Empirical Research on Deliberating

Groups, 7 PSYCHOL. PUB. POL’Y & L. 622 (2001) ...20

Robert J. MacCoun & Tom R. Tyler, The Basis of

Citizens’ Perceptions of the Criminal Jury:

Procedural Fairness, Accuracy, and Efficiency, 12

LAW & HUM. BEHAV. 333 (1988) .................006 oxunens 20

JOHN NORTON POMEROY, AN INTRODUCTION TO

MUNICIPAL LAW (New York, D. Appleton & Co.

Sr a sre Tre ecapsaunuden 22

JOHN PROFFATT, TREATISE ON ‘TRIAL BY JURY (San

Francisco, S. Whitney 1877) .............. Sod encores 22

THEODORE SEDGWICK, TREATISE ON THE RULES WHICH

GOVERN THE INTERPRETATION AND APPLICATION OF

STATUTORY AND CONSTITUTIONAL LAW (New York,

John S. Voorhies 1857)............0cececeee. so edsarnussaadeatean 22

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES (Boston, Hilliard, Gray

EES cvccccscoccss Sabndbasanuus Guosohdednsaanan cadena daxesees .14, 15, 17

X1ll

TABLE OF AUTHORITIES—continued

Page(s)

Kim Taylor-Thompson, #mpty Votes in Jury

Deliberations, 113 HARV. L. REV. 1262 (2000)....... 20

JOEL TIFFANY, A TREATISE ON GOVERNMENT, AND

YONSTITUTIONAL LAW (Albany, W.C. Little 1867) 22

ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES

(Philadelphia, William Y. Birch & Abraham Small

| _._RERD RS po Dali nay ESS DIE BNep RAS PRESS aD Fe HRSA See PvUNe IRA 14, 17

JAMES WILSON, WORKS OF THE HONOURABLE JAMES

WILSON (Philadelphia, Lorenzo Press 1804). 13, 17,

18, 19

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Alonso Alvino Herrera, respectfully

petitions for a writ of certiorari to review the judg-

ment of the Oregon Court of Appeals in this case.

OPINIONS BELOW

The Oregon Court of Appeals decision, App., in-

fra, p. la, is unreported, but relies on State v. Cobb,

198 P.3d 978 (Or. Ct. App. 2008), review denied, 213

P.3d 578 (Or. 2009). The Oregon Supreme Court de-

cision denying review, App., infra, p. 3a, is unre-

ported. The trial court issued no opinion.

JURISDICTION

The Oregon Supreme Court denied review on

June 11, 2010. App., infra, p. 3a. This Court has ju-

risdiction under 28 U.S.C. § 1257(a). See Prune Yard

Shopping Ctr. v. Robins, 447 U.S. 74, 79 (1980) (“a

state constitutional provision is a ‘statute’ within the

meaning ef § 1257(2),” a then-existing provision that

was analogous to the current § 1257(a)).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Con-

stitution provides,

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed * * *.

The Fourteenth Amendment to the United States

Constitution provides,

No state shall 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 * * *.

Article I, section 11, of the Oregon Constitution

provides,

In all criminal prosecutions, the accused

shall have the right to public trial by an im-

partial jury in the county in which the of-

fense shall have been committed; * * * pro-

vided, however, 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 murder, which shall

be found only by a unanimous verdict * * *.

STATEMENT

1. This case presents the important and recur-

ring question whether it is constitutional for Oregon

and Louisiana, alone among the States, to allow

criminal! convictions by nonunanimous jury verdicts.

This Court recently reaffirmed that “incorpo-

rated 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.”

McDonald v. City of Chicago, 130 S. Ct. 3020, 3035

(2010) (plurality opinion); id. at 3058, 3064, 3068

(Thomas, J., concurring in the judgment) (expressing

the same view as to scope of incorporation), discussed

infra p. 6, note 2. And this Court has repeatedly held

that the Sixth Amendment mandates jury unanimity

for federal convictions. See cases cited infra p. 5,

Part I. But the precedential effect of Justice Powell's

concurring opinion in Apodaca v. Oregon, 406 U.S.

404 (1972), has led to the same “two-track” “watered-

down” partial incorporation of the Jury Trial Clause

that this Court condemned in McDonald, 130 S. Ct.

at 3035 & n.14 (plurality opinion).

fight of the nine Justices who decided Apodaca

would have treated federal and state criminal trials

the same way. Four Justices would have rejected a

unanimity requirement for both sorts of trials. 406

U.S. at 407-12 (plurality opinion). And four others

concluded there was a unanimity requirement for

both. Id. at 414—15 (Stewart, J., joined by Brennan

and Marshall, JJ., dissenting); id. at 380—94 (Doug-

las, J., joined by Brennan and Marshall, JJ., dissent-

ing). Only Justice Powell believed that the jury un-

animity requirement, while binding on the federal

government, should not be incorporated against the

states. Id. at 377 (Powell, J., concurring in the judg-

ment). But because Justice Powell’s solo opinion dic-

tated the result in that case—affirmance of the con-

viction—the Jury Trial Clause now apphes different-

ly to federal and state trials.

Two states, Louisiana and Oregon, allow non-

unanimous convictions; in both, a 10-2 vote suffices

to convict. LA. CONST. art. I, § 17; OR. CONST. art. I, §

11; State v. Bertrand, 6 So. 3d 738, 743 (La. 2009)

(citing Apodaca to uphold the constitutionality of

nonunanimous verdicts); State ex rel. Smith v. Sawy-

er, 501 P.2d 792, 793 (Or. 1972) (same).! And because

1 Though Oklahoma uses nonunanimous juries for some of-

fenses, it should not be classified with Oregon and Louisiana for

purposes of this petition’s analysis. Oklahoma authorizes non-

unanimous juries only for the trial of crimes that are punisha-

4

this Court has instructed lower courts to “leav[e] to

this Court the prerogative of overruling its own deci-

sions,” Rodriguez de Quijas v. Shearson/ American

Express, Inc., 490 U.S. 477, 484 (1989), state su-

preme courts will continue to follow Apodaca even

though it has been undermined by McDonald. See in-

fra Part ITI.

This Court should therefore intervene to decide

whether criminal defendants ought to enjoy equal

“enforce[ment] against the States” of the Jury Trial

Clause “according to the same standards that pro-

tect those personal rights against federal encroach-

ment,” McDonald, 130 S. Ct. at 3035, just as gun

owners enjoy equal enforcement of Second Amend-

ment rights against state and federal governments.

2. The prosecution argued at trial that Alonso

Herrera borrowed a friend’s car, and did not bring it

back. 1 Tr. of Proceedings 33 (Aug. 25, 2008). Herre-

ra was prosecuted for unauthorized use of a vehicle,

Or. REV. STAT. § 164.135, and fer possession of a sto-

len vehicle, id. § 819.300. Oregon Court of Appeals

Excerpt of Record 2.

Before trial, Herrera’s lawyer asked for a jury in-

struction stating that the jury had to be unanimous

to render a verdict. App., infra, p. 4a. The court de-

nied the request, tbid., and instructed the jury that,

“10 or more jurors must agree on your verdict.” 1 Tr.

of Proceedings 104. Herrera’s attorney preserved her

exception to that instruction. App., infra, p. 7a.

ble by no more than six months in jail. OKLA. CONST. art. II, §

19. The Jury Trial Clause is inapplicable to such so-called “pet-

ty offenses.” Baldwin v. New York, 399 U.S. 66, 68-69 (1970)

(controlling opinion); District of Columbia v. Clawans, 300 U.S.

617, 624 (1937). The Clause’s unanimity requirement is thus

inapplicable to such offenses as well.

5

The jury voted 10-2 to convict on the unautho-

rized use charge, and 11-1 to acquit on the posses-

sion of stolen vehicle charge. App., infra, p. 6a. On

appeal, Herrera argued that the nonunanimous jury

verdict violated the Sixth and Fourteenth Amend-

ments. App., infra, p. 9a. The Oregon Court of Ap-

peals summarily affirmed, App., infra, p. la, citing

State v. Cobb, 198 P.3d 978 (Or. Ct. App. 2008), re-

view denied, 213 P.3d 578 (Or. 2009). Cobb in turn

stated, “to the extent that defendant now invokes

Blakely v. Washington, 542 U.S. 296 (2004), as over-

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

stlentio, we have previously rejected that contention.

State v. Bowen, 168 P.3d 1208 (2007), modified on re-

cons., 185 P.3d 1129 (2008).” 198 P.3d at 979 (paral-

lel citations deleted).

Herrera petitioned for review to the Oregon Su-

preme Court, renewing the arguments made below.

App. G, infra, p. 14a. The Oregon Supreme Court

denied review. App., infra, p. 3a.

REASONS FOR GRANTING THE PETITION

I. The Oregon Nonunanimous Jury Rule Is

Inconsistent with This Court’s Holding in

McDonald v. City of Chicago.

Alonso Herrera was convicted by a 10-to-2 vote.

Two jurors concluded that the prosecution failed to

prove the case beyond a reasonable doubt.

In a federal case, such a vote would not yield a

conviction, because the Sixth Amendment requires a

unanimous verdict to convict. See, e.g., Andres v.

United States, 333 U.S. 740, 748-49 (1948); Hawaii

v. Mankichi, 190 U.S. 197, 211-12 (1903); see also

Swain v. Alabama, 380 U.S. 202, 211 (1965) (dic-

6

tum), overruled on other grounds by Batson v. Ken-

tucky, 476 U.S. 79 (1986). But because of Justice

Powell’s solo controlling opinion in Apodaca, 406

U.S. at 369-77 (Powell, J., concurring in the judg-

ment), the unanimous jury requirement of the Sixth

Amendment is not incorporated against the states.

This is a constitutional anomaly. This Court has

“abandoned ‘the notion that the Fourteenth Amend-

ment applies to the States only a watered-down, sub-

jective version of the individual guarantees of the

Bill of Rights.”” McDonald, 130 S. Ct. at 3035 (plural-

ity opinion) (quoting Malloy v. Hogan, 378 U.S. 1,

10—11 (1964)).

Instead, this Court has concluded that “it would

be ‘incongruous’ to apply different standards ‘de-

pending on whether the claim was asserted in a state

or federal court.” Ibid. This Court has “decisively

held that incorporated Bill of Rights protections ‘are

all to be enforced against the States under the Four-

teenth Amendment according to the same standards

that protect those personal rights against federal en-

croachment.” Jbid.2 For example, in holding that the

2 Justice Thomas’s analysis on this is consistent with the plu-

rality’s. Justice Thomas concluded that the Privileges or Im-

munities Clause applies to the states all the “individual rights

enumerated in the Constitution.” McDonald, 130 S. Ct. at 3068

(Thomas, J., concurring in part and concurring in the judg-

ment). He noted that “privileges” or “immunities” include “the

right to a jury trial,” a right that stems from “the basic liberties

of English citizens.” Jd. at 3064. And in agreeing that the Four-

teenth Amendment makes the Second Amendment “fully appli-

cable to the States,” id. at 3058, he cited the passage in the

plurality opinion, id. at 3026, that says, “We have previously

held that most of the provisions of the Bill of Rights apply with

full force to both the Federal Government and the States. Ap-

plying the standard that is well established in our case law, we

7

Double Jeopardy Clause was incorporated, this Court

held that, “{[o]nce it is decided that a particular Bill

of Rights guarantee is ‘fundamental to the American

scheme of justice,’ the same constitutional standards

apply against both the State and Federal Govern-

ments.” Benton v. Maryland, 395 U.S. 784, 795

(1969) (citation omitted); see also, e.g., Pointer v.

Texas, 380 U.S. 400, 406 (1965) (same, as to the Con-

frontation Clause); Malloy, 378 U.S. at 10—11 (same,

as to the privilege against self-incrimination).

In McDonald, only one dissenting Justice argued

that Bill of Rights provisions should apply differently

to the states than to the federal government. 130 S.

Ct. at 3092-95 (Stevens, J., dissenting). The other

three dissenters also did not endorse that part of

Justice Stevens’ opinion. Jd. at 3120 (Breyer, J.,

joined by Ginsburg and Sotomayor, JJ., dissenting)

(noting agreement with some parts of Justice Ste-

vens’ opinion, but not with pp. 3092-95). And both

the plurality and Justice Thomas rejected Justice

Stevens’ argument, in the course of reaching their

conclusion that the Second Amendment fully applies

to state and local governments.

The plurality opinion in McDonald did note “one

exception to this general rule” that fundamental

rights are fully incorporated against the states: “The

Court has held that although the Sixth Amendment

right to trial by jury requires a unanimous jury ver-

dict in federal criminal trials, it does not require a

unanimous jury verdict in state criminal trials.” Jd.

at 3035 n.14 (citing Apodaca).

hold that the Second Amendment right is fully applicable to the

States.”

8

But the plurality opinion stressed that the Apo-

daca result was not compatible with McDonald's re-

jection of “the two-track approach to incorporation”

(one track for the federal version of a right and one

for the state version):

[The Apodaca] ruling was the result of an

unusual division among the Justices, not an

endorsement of the two-track approach to in-

corporation. In Apodaca, eight Justices

agreed that the Sixth Amendment applies

identically to both the Federal Government

and the States.

Nonetheless, among those eight, four Jus-

tices took the view that the Sixth Amend-

ment does not require unanimous jury ver-

dicts in either federal or state criminal trials,

and four other Justices took the view that the

Sixth Amendment requires unanimous jury

verdicts in federal and state criminal trials.

Justice Powell’s concurrence in the judg-

ment broke the tie, and he concluded that the

Sixth Amendment requires juror unanimity

in federal, but not state, cases. Apodaca,

therefore, does not undermine the well-

established rule that incorporated Bill of

Rights protections apply identically to the

States and the Federal Government.

Ibid. (citations omitted).

Moreover, the McDonald plurality opinion re-

jected the chief justification underlying Justice Pow-

ell’s “watered-down” incorporation model—the sup-

posed need to protect state “freedom to experiment.”

Justice Powell reasoned that,

9

[I]n holding that the Fourteenth Amendment

has incorporated “jot-for-jot and case-for-

case” every element of the Sixth Amendment,

the Court cerogates principles of federalism

that are basic to our system. In the name of

uniform application of high standards of due

process, the Court has embarked upon a

course of constitutional interpretation that

deprives the States of freedom to experiment

with adjudicatory processes different from

the federal model. * * *

While the Civil War Amendments altered

substantially the balance of federalism, it

strains credulity to believe that they were in-

tended to deprive the States of all freedom to

experiment with variations in jury-trial pro-

cedure. In an age in which empirical study is

increasingly relied upon as a foundation for

decisionmaking, one of the more obvious me-

rits of our federal system is the opportunity it

affords each State, if its people so choose, to

become a “laboratory” and to experiment

with a range of trial and procedural alterna-

tives.

Apodaca, 406 U.S. at 375-76 (Powell, J., concurring

in the judgment). But the McDonald plurality disa-

greed; it concluded that the desire for experimenta-

tion cannot justify “watered-down” incorporation,

and stressed that experimentation may happen only

within constitutional limits:

We likewise reject municipal respondents’

argument that we should depart from our es-

tablished incorporation methodology on the

ground that making the Second Amendment

binding on the States and their subdivisions

LO

is inconsistent with principles of federalism

and will stifle experimentation. * * *

There is nothing new in the argument

that, in order to respect federalism and allow

useful state experimentation, a federal con

stitutional right should not be fully binding

on the States. * * * Throughout the era of “se-

lective incorporation,” Justice Harlan in par-

ticular, invoking the values of federalism and

state experimentation, fought a determined

rearguard action to preserve the two-track

approach.

Time and again, however, those pleas

failed. Unless we turn back the clock or adopt

a special incorporation test applicable only to

the Second Amendment, municipal respon

dents’ argument must be rejected. Under our

precedents, if a Bill of Rights guarantee is

fundamental from an American perspective,

then, unless stare decisis counsels other-

wise,”° that guarantee is fully binding on the

States and thus limits (but by no means eli

minates) their ability to devise solutions to

social problems * * *.

x**x* eek

Incorporation always restricts experimen

tation and local variations, but that has not

stopped the Court from incorporating virtual-

ly every other provision of the Bill of Rights.

“(T]he enshrinement of constitutional rights

necessarily takes certain policy choices off

the table.”

130 S. Ct. at 3045—46, 3050 (plurality opinion) (cita-

tions and footnotes omitted).

1]

Furthermore, footnote 30, which accompanies the

stare decisis reference, cites only the cases rejecting

incorporation of the Grand Jury Clause and the Se-

venth Amendment, /d. at 3046 n.30. It conspicuously

fails to cite Apodaca, thus reinforcing the doubt the

opinion had earlier cast on that case, id. at 3035

n.14.

Apodaca’s “watered-down” incorporation of the

Jury Trial Clause is thus a constitutional anomaly,

based on logic that this Court has repudiated in

McDonald, and that was inconsistent with prior

precedent even at the time of Apodaca itself. This

anomaly is inconsistent with this Court’s many hold-

ings that the Jury Trial Clause requires unanimity

in federal cases, e.g., Andres, supra. It is inconsistent

with this Court’s recent suggestions that unanimity

is indeed required by the Jury Trial Clause in state

cases. See Blakely v. Washington, 542 U.S. 296, 301

02 (2004), and Apprendi v. New Jersey, 530 U.S. 466,

477 (2000), discussed infra p. 23. It violates the

properly understood Jury Trial Clause rights of Ore-

gon and Louisiana criminal defendants. And it un-

dermines the security of other incorporated constitu-

tional rights, by maintaining a precedent that sup-

ports watering down those rights as well.

Il. The Oregon Nonunanimous Jury Rule Is

Inconsistent with the Understanding of the

Jury Trial Right as of the Ratification of

the Sixth Amendment, as of the Ratification

of the Fourteenth Amendment, and Since

Then.

The Apodaca rule is incompatible with this

Court’s recent approach of ensuring that Americans

retain at least those constitutional rights that were

12

recognized at the time of the Framing, and that have

been traditionally recognized since then. See, e.z.,

McDonald, 130 S. Ct. at 3031-34 (plurality opinion);

Blakely, 542 U.S. at 312-13; Crawford v. Washing-

ton, 541 U.S. 36, 50-59 (2004). The unanimity re-

quirement was seen as a fundamental part of the

right to trial by jury at the time of the Framing,

throughout the antebellum era, and when the Four-

teenth Amendment was enacted. And it has been

seen this way since, both by various Supreme Court

decisions, and in the judgment of the states, 48 of

which require unanimity for a criminal jury verdict.

The right is therefore “fundamenta! to our

scheme of ordered liberty” and “‘deeply rooted in this

Nation’s history and tradition,” McDonald, 130 S.

Ct. at 3036 (plurality opinion), is a privilege or im-

munity of American citizenship, id. at 3088 (Thomas,

J., concurring in the judgment), and thus applies to

the states through the Fourteenth Amendment.

A. The Common Law and Early Constitu-

tional Commentary Uniformly Unders-

tood “Trial by Jury” To Require a Un-

animous Verdict in Criminal Cases.

The right to a unanimous jury verdict was firmly

established when the Bill of Rights was framed. Sir

William Blackstone noted it as an essential feature

of the right to trial by jury:

[T]he trial by jury ever has been, and I trust

ever will be, looked upon as the glory of the

English law. * * * [I]t is the most transcen-

dent privilege which any subject can enjoy, or

wish for, that he cannot be affected either in

his property, his lhberty, or his person, but by

the unanimous consent of twelve of his

13

neighbours and equals. A constitution, that |

may venture to affirm has, under providence,

secured the just liberties of this nation for a

long succession of ages.

2 BLACKSTONE, COMMENTARIES *378-79. Likewise,

Blackstone listed the requirement of “unanimous suf-

frage” on a jury as part of the protection provided by

the jury trial to “the hberties of England,” and ar-

gued that “inroads upon this sacred bulwark of the

nation [the jury trial] are fundamentally opposite to

the spirit of our constitution.” 4 id. *849-50. John

Adams took the same view in America, writing that

‘it is the unanimity of the jury that preserves the

rights of mankind.” 1 JOHN ADAMS, A DEFENCE OF

THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED

STATES 376 (Philadelphia, William Cobbett 1797).

While the Bill of Rights was being ratified, Jus

tice James Wilson—“who was instrumental in fram-

ing the Constitution and who served as one of the

original Members of this Court,” Victor v. Nebraska,

511 U.S. 1, 10 (1994)—stressed the unanimity re-

quirement in his 1790-91 lectures: “l'o the conviction

of a crime, the undoubting and the unanimous sen

timent of the twelve jurors is of indispensable neces-

sity.” 2 JAMES WILSON, WORKS OF THE HONOURABLE

JAMES WILSON 350 (Philadelphia, Lorenzo Press

1804); see also 2 id. at 306, 311, 342, 351, 360 (fur

ther noting the unanimity requirement).

Justice Wilson’s lectures were about law general

ly, not constitutional law as such. But he was dis

cussing the meaning of “the trial by jury” in criminal

cases. .g., 2 id. at 344, 348. And it is the “right to a

* * * trial, by an impartial jury” that the Sixth

Amendment enshrines as a constitutional command

(and that Article III], § 2, cl. 3, “The Trial of all

14

Crimes, except in Cases of Impeachment, shall be by

Jury,” likewise enshrines). As George Hay, the Unit-

ed States Attorney in the Aaron Burr trial, put it,

“The trial by jury is a technical phrase of the com-

mon law. By its insertion in the constitution, that

part of the common law which prescribes the num-

ber, the unanimity of the jury and the right of chal-

lenge is adopted.” United States v. Burr, 25 F. Cas.

55, 141 (C.C.D. Va. 1807).

St. George Tucker, author of the 1803 edition of

Blackstone’s Commentaries, likewise treated the

Sixth Amendment as embodying the trial by jury de-

scribed by Blackstone: His footnote on the Black-

stone pages cited above (4 BLACKSTONE *349-—50, in 5

ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES

348-51 (Philadelphia, William Y. Birch & Abraham

Small 1803)) noted that “the trial by jury” described

in Blackstone’s text was adopted in America, and se-

cured by the Sixth Amendment. 5 TUCKER, supra, at

348-49 n.2. Tucker cited the Sixth Amendment

alongside its Virginia analog, which required “a

speedy trial by an impartial jury of his vicinage

without whose unanimous consent [the defendant]

cannot be found guilty.” Jbid. And he wrote that

“without [the jurors’] unanimous verdict, or consent,

no person can be condemned of any crime.” 1 id. at

App. 34.

Justice Joseph Story, in his great constitutional

law treatise, likewise stressed that the constitutional

“trial by jury” is the same “great privilege” that had

been “part of that admirable common law.” 3 JOSEPH

STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 1773, at 652 (Boston, Hilliard, Gray

1833). Justice Story endorsed the Blackstone articu-

lation of the terms of that “great privilege”: “I com-

15

mend to the diligent perusal of every scholar, and

every legislator, the noble eulogium of Mr. Justice

Blackstone on the trial by jury.” 3 id. at 654 n.1 (cit-

ing “3 Black. Comm. 379, 380, 381; 4 Black. Comm.

349, 350,” which note the requirement of unanimity);

see also 3 id. at 652 n.1 (citing “4 Black. Comm.

349”); 3 id. at 653 n.2 (citing “4 Black. Comm[.] 349,

350”). And in a different passage, Justice Story fur-

ther confirmed that unanimity was understood as a

constitutional requirement: His discussion of the

constitutional standard for impeachment contrasted

the two-thirds requirement for conviction in an 1m-

peachment trial with the rule in criminal trials,

where “unanimity in the verdict of the jury is indis-

pensable.” 2 td. § 777, at 248.

Nathan Dane’s influential 1823 General Abridg-

ment and Digest of American Law similarly treated

the Bul of Rights as providing that “the jury in crim-

inal matters must be unanimous.” 6 NATHAN DANE,

GENERAL ABRIDGMENT AND DIGEST OF AMERICAN LAW

226 (Boston, Cummings, Hilliard & Co. 1828).

Another volume of the same work echoes this: “The

value and excellency of [the criminal trial by jury] is

fully declared in all our constitutions, and repeatedly

in our laws. In virtue of it * * * the truth of every ac-

cusation must be established by the unanimous ver-

dict of twelve [jurors] indifferently chosen.” 7 id. 335.

A Westlaw query for “dane abr!” “dane’s abr!” &

date(< 1/1/1900) reveals that in the 1800s the Ab-

ridgment was cited by this Court 38 times, and over

950 times by all the cases in the ALLCASES-OLD

database.

Unanimity was also part of James Madison’s un-

derstanding of the right to trial by jury. Madison’s

original draft of what would become the Sixth

16

Amendment provided for trial “by an impartial jury

of freeholders of the vicinage, with the requisite of

unanimity for conviction, of the right of challenge,

and other accustomed requisites,” 1 Annals of Cong.

452 (1789).

The proposal was ultimately revised, with the

“unanimity” language omitted, and there can be two

alternative inferences from this change. One is “that

Congress eliminated references to unanimity and to

the other ‘accustomed requisites’ of the jury because

those requisites were thought already to be implicit

in the very concept of jury.” Apodaca, 406 U.S. at

409-10 (plurality opinion). The other, which the

Apodaca plurality endorsed, “is that the deletion was

intended to have some substantive effect.” Id. at 410.

But the plurality was mistaken; the historical

evidence cited above shows that the unanimity re-

quirement was indeed seen as “implicit in the very

concept” of the Anglo-American criminal jury. Pro-

tecting the “trial by jury” safeguarded the essential

incidents of the trial, such as the unanimity re-

quirement, with no need for a detailed enumeration.

To be sure, the Jury Trial Clause did not consti-

tutionalize all details of the common-law jury. As one

early decision explained, “None would contend, at

this day, in a trial of a writ of right, for the extraor-

dinary [common-law] jury, called the grand assize,

composed of four knights, ‘girt with swords,’ and who

chose twelve other persons to be joined with them.”

Dowling v. State, 13 Miss. 664, 681—82 (1846) (hold-

ing that departures from common-law jury selection

procedures may be constitutionally permissible un-

der the Mississippi Constitution’s jury trial provi-

sion). One could argue that even the choice of twelve

as the number of jurors might be sufficiently arbi-

17

trary and accidental that some variation would be

permitted, see Williams v. Florida, 399 U.S.86, 90

(1970), though petitioner takes no position on that

question.

But, as Dowling put it, though “[t]he old common

law has been insensibly changed and tempered to

our situation and institutions,” “the constitution

must be construed to have adopted the generous pri-

vilege of the common law trial by jury in its essential

elements.” 13 Miss. at 682. Only those features that

were “an accidental and not an absolute part of that

institution, the mere superfluous forms and compli-

cated proceedings of the English courts” are outside

the constitutional guarantee. /bid.

The unanimity requirement was indeed not just

an “accidental,” “superfluous” detail, but an “essen-

tial element[]” of the jury trial. It was a part of “our

[English] constitution” that protected “the liberties of

England” (Blackstone), and that was then accepted

in America (as Story stressed). It “preserve[d] the

rights of mankind” (Adams). It was “of indispensable

necessity” (Wilson), “indispensable” to a criminal

jury verdict (Story), part of the American design of

“the several powers of government” (Tucker), and

part of the trial by jury secured by “all our constitu-

tions” (Dane).

And this view shared by these authorities is no

accident, because there is nothing peripheral or arbi-

trary about the difference between a unanimous find-

ing of guilt beyond a reasonable doubt and a finding

of guilt entered over some jurors’ dissent. As Justice

Wilson put it, “To the conviction of a crime, the un-

doubting and the unanimous sentiment of the twelve

jurors is of indispensable necessity,” 2 WILSON, su-

pra, at 350 (emphasis added). A nonunanimous jury

18

conviction by definition means that some juror—in

petitioners’ case, two jurors—found that there was a

reasonable doubt about the verdict.

Likewise, Justice Wilson wrote that “it would be

difficult to suggest, for [the defendant’s] security, any

provision more efficacious than one, that nothing

shall be suffered to operate against him without the

unanimous consent of the delegated body.” 2 id. at

316. The unanimity requirement is distinctive in this

respect, because it is the best protection of its kind

for the defendant. The twelve-member jury size, for

instance, cannot be defended this way; one can al-

ways suggest a slightly larger jury as a theoretical

protection for the defendant, yet the jury size has to

be limited, so some arbitrary line must be drawn.

But unanimity is both a feasible protection for de-

fendants, and the most “efficacious” one for their “se-

curity.”3

3 The nonunanimous jury requirement is on balance less “effica-

cious” for the “security” of defendants, even though it allows 11-

1 or 10-2 acquittals as well as 11-1 or 10-2 convictions. First,

such splits in favor of acquittal are much rarer than such splits

in favor of conviction. See, e.g., CALIF. ADMIN. OFFICE OF THE

COURTS, FINAL REPORT OF THE BLUE RIBBON COMMISSION ON

JURY SYSTEM IMPROVEMENT 72 (1996), http://www.courtinfo.ca.

gov/reference/documents/BlueRibbonFullReport.pdf (reporting,

based on Los Angeles County data, that 31% of all hung juries

were 11-1 or 10-2 for conviction, and only 11% were 11-1 or 10-2

for acquittal). Second, even under a unanimity rule, prosecutors

would be much less likely to retry a case after a 11-1 or 10-2

jury split for conviction than after a similar split for acquittal.

Making such a split in favor of acquitting into a legal acquittal

would thus help defendants litthe—but making a similar split in

favor of conviction into a legal conviction would disadvantage

defendants more.

19

Similarly, Justice Wilson noted that jurors, who

represent the same society whose officials are prose-

cuting the defendant, may tend to sympathize with

the prosecution. In a criminal prosecution, “on one

side [1s] an individual—on the other, all the members

of the society except himself—on one side, those who

are to try—on the other, he who is to be tried.” 2 id.

at 315. This means that “the representatives [1.e., the

jurors] are not indifferent, and, consequently, may

not be impartial.” Jbid.

Because of this, Justice Wilson explained, “the

evidence, upon which a citizen is condemned, should

be such as would govern the judgment of the whole

society,” tbid., which is to say evidence that all rea-

sonable members of society should accept as disposi-

tive. To provide some assurance of this, “we may re-

quire the unanimous suffrage of the deputed body

[t.e., the jury] who try, as the necessary and proper

evidence of that judgment.” Ibid.

This reasoning cannot be apphied directly to jury

size, where ten or fourteen might work as a proxy for

society’s views about as well as twelve would. It can-

not be applied to some other historical features of the

jury. But the reasoning fully supports Justice Wil-

son’s conclusion that there is no substitute for un-

animity in determining whether the evidence is

“such as would govern the judgment” of all reasona-

ble members of society. Whenever a presumptively

reasonable juror finds a reasonable doubt, there is a

basis to think that “the judgment of the whole socie-

ty’ may not support conviction—many other reason-

able members of society might share the minority ju-

ror’s doubts.

Justice Wilson’s arguments supporting the un-

animity requirement are powerful. And the value of

20

the unanimity requirement in ensuring the protec-

tion of minority groups, promoting deliberation

among jurors, and making convictions more credible

to the public further supports Justice Wilson’s think-

ing. “Studies suggest that where unanimity is re-

quired, jurors evaluate evidence more thoroughly,

spend more time deliberating and take more ballots.

In contrast, where unanimity is not required juries

tend to end deliberations once the minimum number

for a quorum is reached.” AMERICAN BAR ASS’N,

PRINCIPLES FOR JURIES AND JURY TRIALS, WITH COM.

MENTARY principle 4.B, at 24 (2005), http://www.

abanet.org/jury/pdf/final%20commentary_july__ 1205.

pdf.4

But whether the unanimity requirement is

wise—or for that matter whether the jury trial re-

quirement is wise—is not the main question here.

The important point is that the unanimity require-

ment was understood to be a central, “indispensable”

requirement of the right to trial by jury that the

Framers knew and constitutionalized. Whatever flex-

ibility the government may have in dispensing with

historical features of the jury that are peripheral, ac-

4 See, e.g., Dennis J. Devine et al., Jury Decision Making: 45

Years of Empirical Research on Deliberating Groups, 7 Psy-

CHOL. PUB. POL’y & L. 622, 669 (2001) (discussing data that

tends to show that the absence of a unanimity requirement

leads to less deliberation); Kim Taylor-Thompson, Empty Votes

in Jury Deliberations, 113 HARV. L. REV. 1262, 1273 (2000)

(same); td. at 1264, 1298-99 (noting that the absence of a un-

animity requirement may lead to less consideration of the opi-

nions of minority groups); Robert J. MacCoun & Tom R. Tyler,

The Basis of Citizens’ Perceptions of the Criminal Jury: Proce-

dural Fairness, Accuracy, and Efficiency, 12 LAW & HUM. BE-

HAV. 333, 337-38 & tbl.1 (1988) (noting that the public views

unanimous juries as more accurate and fair).

21

cidental, or unimportant, such flexibility cannot ex-

tend to the essential requirement of unanimity.

B. The “Trial by Jury” Was Understood as

Requiring a Unanimous Verdict at the

Time the Fourteenth Amendment Was

Ratified.

The Fourteenth Amendment was said to secure

(among other rights) the right to “trial by jury.”

Cong. Globe, 42d Cong., lst Sess. app. 85 (1871)

(statement of Rep. Bingham); Cong. Globe, 39th

Cong., lst Sess. 2765 (1866) (statement of Sen. How-

ard) (“right to be tried by an impartial jury of the vi-

cinage”); Cong. Globe, 42d Cong., 2d Sess. 844 (1872)

(statement of Sen. Sherman) (“right to be tried by an

impartial jury’). And at the time the Fourteenth

Amendment was ratified, “trial by jury” in criminal

cases continued to be understood as requiring un-

animity for conviction.

Michigan Supreme Court Justice Thomas Cooley,

the “most famous” of the “late-19th-century legal

scholar[s]” made this clear in his “massively popular”

treatise. District of Columbia v. Heller, 128 S. Ct.

2783, 2811 (2008) (so labeling Justice Cooley and his

treatise). “The jury must unanimously concur in the

verdict.” THOMAS M. COOLEY, A TREATISE ON THE

CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE

LEGISLATIVE POWER OF THE STATES OF THE AMERICAN

UNION 320 (Boston, Little, Brown & Co. 1868). And

Justice Cooley joined Hill v. People, 16 Mich. 351,

358 (1868), which interpreted the Michigan Consti-

tution’s jury trial clause as implicitly guaranteeing a

jury in which “unanimous agreement” is required for

conviction.

22

Other leading commentators of that period took

the same view: “[I]n a case in which the constitution

guarantees a jury trial,” a statute allowing “a verdict

upon anything short of the unanimous consent of the

twelve jurors” is “void.” 1 JOEL PRENTISS BISHOP,

COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE

532 (Boston, Little, Brown 1866). “That term [‘jury’],

when spoken of in connection with trial by jury in

{the New York Constitution], imports a jury of twelve

men whose verdict is to be unanimous. Such must be

its acceptation to every one acquainted with the his-

tory of common law * * *.” THEODORE SEDGWICK,

TREATISE ON THE RULES WHICH GOVERN THE INTER-

PRETATION AND APPLICATION OF STATUTORY AND CON.

STITUTIONAL LAW 530 (New York, John S. Voorhies

1857).

“{T]he jury [must] be unanimous in rendering

their verdict. * * * The principle once adopted has

continued as an essential part of the jury trial * * *.”

JOHN NORTON POMEROY, AN INTRODUCTION TO MU-

NICIPAL LAW 78 (New York, D. Appleton & Co. 1864)

(so stating even though the author disapproved of

the unanimity requirement on policy grounds). “[A]

trial by jury is understood to mean—generally—a

trial by a jury of twelve men, impartially selected,

and who must unanimously concur in the guilt of the

accused before a legal conviction can be had.” JOEL

TIFFANY, A TREATISE ON GOVERNMENT, AND CONSTI-

TUTIONAL LAW 366-67 (Albany, W.C. Little 1867).

‘II]t is required that the jury shall be unanimous.”

JOHN PROFFATT, TREATISE ON TRIAL BY JURY 119 (San

Francisco, S. Whitney 1877).®

5 See Heller, 128 S. Ct. at 2789 (citing the Tiffany and Sedgwick

treatises as authoritative); Blakely, 542 U.S. at 301-02 (like-

23

These sources show that, when the Fourteenth

Amendment was adopted, the right not to be con-

victed without a unanimous jury verdict was counted

“among those fundamental rights necessary to our

system of ordered liberty,” McDonald, 130 S. Ct. at

3042 (plurality opinion), and as among the privileges

or immunities of American citizenship, id. at 3088

(Thomas, J., concurring in the judgment).

C. The “Trial by Jury” Has Been Seen as

Requiring Unanimity Since the Enact-

ment of the Fourteenth Amendment.

More recent sources have continued to see un-

animity as an essential part of the Sixth Amendment

right to trial by jury. This Court has squarely held

this many times as to federal trials. See cases cited

supra p. 5, Part I. Even Justice Powell conceded this

in Apodaca. 406 U.S. at 370.

The centrality of unanimous jury trials to the

American right to trial by jury is also reflected in

this Court’s repeated references to such a require-

ment even as to state prosecutions. Thus, in Blakely,

this Court reasoned that the beyond-a-reasonable-

doubt standard in criminal cases rested on the

“longstanding tenet[] of common-law criminal juri-

sprudence” that “the ‘truth of every accusation’

against a defendant ‘should afterwards be confirmed

by the unanimous suffrage of twelve of his equals

and neighbours.” 542 U.S. at 301 (citing 4 BLACK-

STONE, COMMENTARIES *349-50). “The Framers

would not have thought it too much to demand that,

wise as to the Bishop treatise); Lewis v. United States, 518 U.S.

322, 334 (1996) (likewise as to the Proffatt treatise); Watt v.

Alaska, 451 U.S. 259, 284 (1981) (likewise as to the Sedgwick

treatise).

24

before depriving a man of three more years of his 1i

berty, the State should suffer the modest inconve-

nience of submitting its accusation to ‘the unanimous

suffrage of twelve of his equals and neighbours,’ * * *

rather than a lone employee of the State.” Jd. at 313

14 (again citing Blackstone).

Likewise, in Apprendi v. New Jersey, this Court

described the unanimity requirement as an essential!

part of the right to trial by jury, and an essential

protector of the beyond-a-reasonable-doubt test:

“(Tjo guard against a spirit of oppression and

tyranry on the part of rulers,” and “as the

great bulwark of [our] civil and political li

berties,” 2 J. Story, Commentaries on the

Constitution of the United States 540-541

(4th ed. 1873), trial by jury has been unders-

tood to require that “the truth of every accu-

sation, whether preferred in the shape of in

dictment, information, or appeal, should af-

terwards be confirmed by the unanimous suf-

frage of twelve of [the defendant’s] equals

and neighbours... .” 4 W. Blackstone, Com-

mentaries on the Laws of England [*349-—50]

(1769).

530 U.S. 466, 477 (2000).

These statements were not intended to reconsid-

er Apodaca; the issue was not before this Court in

those cases. But they do help show that the require-

ment of jury unanimity is a fundamental and contin-

uing part of our constitutional traditions, traditions

that still prevail throughout 48 of the 50 states. As

this Court said in Burch v. Louisiana, 441 U.S. 130

(1979), in holding that six-member criminal juries

must act unanimously, the “near-uniform judgment

25

of the Nation”—there, too, with only two dissenting

states——“provides a useful guide in delimiting the

line between those jury practices that are constitu-

tionally permissible and those that are not.” Jd. at

138.

Ill. This Court’s Review Is Warranted Because

the Oregon and Louisiana Supreme Courts

Cannot Revisit the Issue Until This Court

Acts.

Though Apodaca is inconsistent with this Court’s

more recent cases, only this Court can correct the in-

consistency. The Oregon and Louisiana Supreme

Courts are unlikely to themselves depart from Apo-

daca. As the Louisiana Supreme Court recently held,

“we are not presumptuous enough to suppose, upon

mere speculation, that the United States Supreme

Court’s still valid determination [in the plurality

opinion of Apodaca v. Oregon, 406 U.S. 404 (1972),]

that non-unanimous 12 person jury verdicts are con-

stitutional may someday be overturned.” State v.

Bertrand, 6 So. 3d 738, 743 (La. 2009).

This Court has made clear that, “[iJt is this

Court’s prerogative alone to overrule one of its pre-

cedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

“If a precedent of this Court has direct application in

a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals

should follow the case which directly controls, leav-

ing to this Court the prerogative of overruling its

own decisions.” Rodriguez de Quijas v. Shear-

son/American Express, Inc., 490 U.S. 477, 484

(1989); see also Agostini v. Felton, 521 U.S. 203, 237

(1997) (same). State supreme courts routinely cite

Rodriguez de Quijas, Agostini, and State Oil for the

26

proposition that they must adhere to this Court's ex-

isting precedents, even when those precedents ap-

pear to be inconsistent with the reasoning of later

decisions.

Thus, for instance, Commonwealth v. Loadholt,

923 N.E.2d 1037, 1053 n.10 (Mass. 2010), cited State

Oil and Rodriguez de Quijas in declining to reconsid-

er then-existing precedents holding the Second

Amendment inapplicable to the states. It took this

Court’s decision a few months later in McDonald to

overrule those precedents.

Likewise, Johnsor v. Commonwealth, 591 S.E.2d

47, 60 (Va. 2004), cited Rodriguez de Quijas in “di-

rectly reject[ing] Johnson’s argument that we should

anticipate that the United States Supreme Court

may reexamine and reverse its holding in Stanford

lv. Kentucky, 492 U.S. 361 (1989) (holding murderers

may be executed even if they committed the murder

while under 18),] under an analysis similar to the

one that the Court applied in Atkins [v. Virginia, 536

U.S. 304 (2002)].” It took this Court’s decision in Ro-

per v. Simmons, 543 U.S. 551 (2005), to overrule

Stanford. See Johnson v. Virginia, 544 U.S. 901

(2005) (remanding Johnson v. Commonwealth for

consideration in light of Roper).

Similarly, State v. Ring, 25 P.3d 1139 (Ariz.

2001), refused to strike down the Arizona death pe-

nalty scheme, under which a judge decided whether

the defendant should be sentenced to death. That

scheme had earlier been upheld by Walton v. Arizo-

na, 497 U.S. 639, 648 (1990), but the reasoning of

this Court’s later decision in Apprendi v. New dersey,

530 U.S. 466 (2000), suggested that Walton was no

longer sound. The Arizona Supreme Court in Ring

reasoned, “[a|lthough Defendant argues that Walton

27

cannot stand after Apprendi, we are bound by the

Supremacy Clause in such matters. Thus, we must

conclude that Walton is still the controlling authority

and that the Arizona death-penalty scheme has not

been held unconstitutional under either Apprendi or

Jones.” 25 P.3d at 1151 52. It took this Court’s deci

sion in Ring v. Arizona, 536 U.S. 584 (2002), rev'y

State v. Ring, to overrule Walton.

Many other state court cases likewise rely on

Rodriguez de Quijas, Agostini, or State Oil in reject

ing a criminal defendant's arguments that a

precedent of this Court has been undermined by lat

er precedents.® These state supreme court decisions

may well be correct, given the reasoning of Rodriguez

de Quijas. But these decisions show that it is for this

Court, and not for the Oregon or Louisiana state

courts, to decide whether Apodaca survives McDo

nald and other recent cases.

IV. Stare Decisis Concerns Do Not Justify Pre-

serving the Apodaca Anomaly.

The erroneous approach of Apodaca ought not be

preserved in the name of stare decisis

A. Justice Powell’s Solo Concurrence in Apo-

daca Is Not Entitled to Stare Decisis Effect.

As explained above, the Apodaca concurrence’s

conclusion—that the Fourteenth Amendment only

6 See, e.g., People v. Letner, 235 P.3d 62, 112 Cal. Rptr. 3d 746,

834 (Cal. 2010); People v. Huber, 139 P.3d 628, 631 (Colo. 2007);

State v. Mizenko, 127 P.3d 458, 468 (Mont. 2006); State v

Gales, 658 N.W.2d 604, 627 (Neb. 2003); State v. Rodripuez, 116

P.3d 92, 97-98 (N.M. 2005); State v. Bacon, 702 A.2d 116, 122

n.7 (Vt. 1997).

28

incorporates a “watered-down” version of the Jury

Trial Cause—was inconsistent with this Court’s past

cases incorporating Bill of Rights guarantees. “Re-

maining true to an ‘intrinsically sounder’ doctrine es-

tablished in prior cases better serves the values of

stare decisis than would following a more recently

decided case inconsistent with the decisions that

came before it.” Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 231 (1995); see also, e.g., United States

v. Dixon, 509 U.S. 688, 704 (1993) (overruling an ear-

lier decision on the grounds that it “lack[ed] constitu-

tional roots” and was “wholly inconsistent with earli-

er Supreme Court precedent”).

And the concurrence’s conclusion has been “un-

dermined by later decisions.” See Arizona v. Gant,

129 S. Ct. 1710, 1728 (2009) (Alito, J., dissenting)

(noting this as a factor relevant to the stare decisis

analysis); Patterson v. McLean Credit Union, 491

U.S. 164, 173-74 (1989) (likewise). McDonald re-

jected the “watered-down incorporation” mode] that

the Apodaca concurrence adopted. 130 S. Ct. at 3035.

And McDonald likewise undermined the concur-

rence’s chief justification for this model, which was

the perceived need to protect state “experimentation”

in this area. See supra Part I.

The McDonald plurality opinion itself sug-

gested—in the course of rejecting the “experimenta-

tion” argument—that stare decisis would not save

the Apodaca “watered-down” incorporation doctrine.

The opinion stated that Bill of Rights provisions are

fully incorporated “unless stare decisis counsels oth-

erwise.” 130 S. Ct. at 30646 (plurality opinion). But in

the accompanying footnote, id. at 3046 n.30, it cited

only the cases rejecting incorporation of the Grand

Jury Clause and the Seventh Amendment, conspi-

29

cuously omitting Apodaca from the list of cases that

might be preserved by stare decisis.

Moreover, Justice Powell’s reasoning is inconsis-

tent with the understanding of the right to jury trial

in 1791 and 1868, and with the traditional under-

standing of the right throughout American history.

See supra Parts I].A—.B. The opinion has thus been

undermined by later precedents that stress the im-

portance of original meaning and history to constitu-

tional interpretation. See, e.g., McDonald, 130 S. Ct.

at 3031-34 (plurality opinion); Blakely, 542 U.S. at

312-13; Crawford, 541 U.S. at 50-59.

Justice Powell’s experimentation rationale has

also been “undermined by experience since its an-

nouncement.” Citizens United v. FEC, 1308S. Ct. 876,

912 (2010) (noting this as a factor against the appli-

cation of stare decisis), Since Apodaca, not one state

has joined Oregon and Louisiana in their experi-

ment. Oklahoma, which had allowed nonunanimous

juries for all misdemeanors, shifted to allowing them

only in those “petty offense” cases where the Jury

Trial Clause does not apply at all, see supra note 1.

1989 Okla. Sess. Law Serv. Sen. Jt. Res. 17 (West),

enacted as OKLA. CONST. art. II, § 19. Occasional

calls to allow nonunanimous criminal jury verdicts in

other states have been rejected. See, e.g., In re Flori-

da Rules of Criminal Procedure, 272 So. 2d 65 (Fla.

1972) (preserving the unanimity requirement, de-

spite the state Chief Justice’s contrary suggestion,

272 So. 2d at 66—69 (Roberts, C.J., concurring in part

and dissenting in part), and despite the then-recent

Apodaca decision).

Even the American Bar Association’s brief en-

dorsement of nonunanimous verdicts, on which Jus-

tice Powell’s concurring opinion relied, 406 U.S. at

30

377, has been rejected by the ABA itself. In 1975 and

2005, the ABA reaffirmed the necessity of the un-

animity requirement. AMERICAN BAR ASS’N, STAN.

DARDS RELATING TO TRIAL COURTS, standard 2.10 &

commentary, at 20, 23-24 (1975); AMERICAN BAR

ASS’N, PRINCIPLES FOR JURIES AND JURY TRIALS, WITH

COMMENTARY, supra, principle 4.B, at 23.

Nor has there been evidence that Oregon’s and

Louisiana’s justice systems have become materially

more efficient or fair than those of other states be-

cause of their acceptance of nonunanimous verdicts.

After 40 years, there seems to be little remaining

benefit in continuing experimentation.

Stare decisis also has less applicability to frac-

tured decisions—such as Apodaca—in which no ra-

tionale received five votes. Thus, in Seminole Tribe v.

Florida, 517 U.S. 44 (1996), this Court overruled

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989),

partly because “a majority of the Court [consisting of

the concurring opinion providing the fifth vote and

the dissent had] expressly disagreed with the ratio-

nale of the plurality,” so that the earlier decision had

only “questionable precedential value.” 517 U.S. at

66. Likewise, in Apodaca, five Justices disagreed

with the plurality’s rationale, and eight Justices dis-

agreed with Justice Powell’s rationale.

B. The Suggestion by the Apodaca Plurality

That Unanimity Is Not Required Even in

Federal Criminal Trials Is Not Entitled to

Stare Decisis Effect.

The Apodaca plurality’s conclusion—that the

Sixth Amendment does not mandate jury unanimity

even in federal criminal trials—was inconsistent

with a solid line of this Court’s decisions and with

3]

the Amendment’s original meaning. To the extent

that the plurality argued the contrary, its analysis

was not “well reasoned.” See Montejo v. Louisiana,

129 S. Ct. 2079, 2089 (2009) (noting this as a factor

in deciding whether to apply stare decisis).

Moreover, the Apodaca plurality opinion rested

its conclusion partly on the judgment that “the Sixth

Amendment itself has never been held to require

proof beyond a reasonable doubt in criminal cases.”

406 U.S. at 411. But since Apodaca, the Sixth

Amendment has indeed been held to require exactly

that. “[T]he jury verdict required by the Sixth

Amendment is a jury verdict of guilty beyond a rea-

sonable doubt.” Sullivan v. Louisiana, 508 U.S. 275,

278 (1993). “This Court has repeatedly held that, un-

der the Sixth Amendment, any fact that exposes a

defendant to a greater potential sentence must be

found by a jury, not a judge, and established beyond

a reasonable doubt, not merely by a preponderance of

the evidence.” Cunningham v. California, 549 U.S.

270, 281 (2007). The Apodaca plurality’s reasoning

has thus been entirely undermined by later deci-

sions.

C. Revisiting Apodaca Would Not Unduly Un-

dermine Reliance Interests.

This Court has long recognized that correcting

erroneous decisions about judicial procedure is espe-

cially proper. “Considerations in favor of stare dect-

sis are at their acme in cases involving property and

contract rights, where reliance interests are in-

volved; the opposite is true in cases . . . involving

procedural and evidentiary rules’ that do not produce

such reliance.” Pearson v. Callahan, 129 S. Ct. 808,

32

816 (2009) (quoting Payne v. Tennessee, 501 U.S. 808,

828 (1991)).

And Apodaca has not led to reliance of the sort

that would justify retaining Apodaca’s anomalous re-

sult. Only two of the 50 states have adopted nonuna-

nimous jury verdicts. And even in those two states,

the criminal justice system has not built any complex

edifice on the basis of such verdicts. Mandating un-

animity in jury decisionmaking would not require

the revision of those states’ codes of criminal proce-

dure or evidence. Nor would reversing Apodaca un-

dermine any complex constitutional structure that

this Court has built on that case; recent decisions are

inconsistent with Apodaca, not reliant on it.

Of course, mandating jury unanimity for convic-

tion may require retrials in those cases that are on

direct review, Teague v. Lane, 489 U.S. 288, 304, 310

(1989) (plurality opinion); id. at 317 (White, J., con-

curring in part and concurring in the judgment), and

in which the objection to a nonunanimous jury was

preserved, United States v. Booker, 543 U.S. 220, 268

(2005). But that has been true in many cases that

have reversed erroneous precedents, including many

leading incorporation cases, see, e.g., Mapp v. Ohio,

367 U.S. 643 (1961), overruling Wolf v. Colorado, 338

U.S. 25 (1949); Gideon v. Wainwright, 372 U.S. 335

(1963), overruling Betts v. Brady, 316 U.S. 455

(1942); Batson v. Kentucky, 476 U.S. 79 (1986), over-

ruling in part Swain v. Alabama, 380 U.S. 202

(1965). Those cases also applied to other cases that

were on direct appeal. Linkletter v. Walker, 381 U.S.

618 (1965) (so holding as to Mapp), disapproved of as

to other matters by Griffith v. Kentucky, 479 U.S.

314, 321-22 (1987); Griffith, 479 U.S. at 328 (so hold-

ing as to Batson); Pickelsimer v. Wainwright, 375

33

U.S. 2 (1963) (per curiam) (applying Gideon even on

habeas review, which would not be called for if Apo-

daca were overruled, given Teague). Yet this did not

stop this Court from overruling the earlier deci-

sions—even though such overruling applied to many

more states than the two implicated here.

Similarly, the rejection in Crawford, 541 U.S. at

60-62, of the Confrontation Clause framework devel-

oped in Ohio v. Roberts, 448 U.S. 56 (1980), required

revisiting some cases in which the government had

relied on Roberts. This Court itself remanded twelve

cases for further consideration in light of Crawford:

Siler v. Ohio, 543 U.S. 1019 (2004); Watt v. Washing-

ton, 543 U.S. 976 (2004); Varacalli v. United States,

543 U.S. 801 (2004); LaFontaine v. United States,

543 U.S. 801 (2004); Calcano v. United States, 543

U.S. 801 (2004); Sarr v. Wyoming, 543 U.S. 801

(2004); Wedgeworth v. Kansas, 543 U.S. 801 (2004);

Ko v. New York, 542 U.S. 901 (2004); Goff v. Ohio,

541 U.S. 1083 (2004); Prasertphong v. Arizona, 541

U.S. 1039 (2004); Shields v. California, 541 U.S. 930

(2004); Corona vy. Florida, 541 U.S. 9380 (2004).

Doubtless many other cases had to be reconsidered

by lower courts. Yet that a government enacted rules

believing that they are constitutional “is not a com-

pelling interest for stare decisis. If it were, legislative

acts could prevent [this Court] from overruling our

own precedents, thereby interfering with [this

Court’s] duty ‘to say what the law is.” Citizens Unit-

ed, 130 S. Ct. at 913 (quoting Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803)).

CONCLUSION

For these reasons, the petition for a writ of certi-

orari should be granted.

34

Respectfully submitted.

SEPTEMBER 2010

EUGENE VOLOKH

Counsel of Record

Professor of Law

UCLA School of Law

Academic Affiliate

Mayer Brown LLP

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-3926

volokh@law.ucla.edu

Counsel for Petitioner