Opposition Brief — Herrera v. Oregon

Y\ (y) cit

No. 10-344

Sa

Ju the Supreme Court

of the United States

ALONSO ALVINO HERRERA,

Petitioner,

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 Oreyon

*MARY H. WILLIAMS

Solicitor General

DOUGLAS M. PETRINA

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

mary.williams@doj.state.or.us

Counsel for Respondent

*Counsel of Record

WiLSON-EPES PRINTING CO., IN (202) /69-0096 WASHINGTON. D C 2000:

QUESTION PRESENTED

Thirty-eight years ago this Court held, in an Ore-

gon 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 adminis-

ter Oregon’s seventy-six-year-old constitutional provi-

sion that permits less-than-unanimous jury verdicts

in felony cases other than murder. Or. Const., Art. I,

§ 11.

Should this Court overrule Apodaca and hold that

the Sixth Amendment, as incorporated through the

Fourteenth Amendment, requires jury verdicts in

state court felony cases to be unanimous?

TABLE OF CONTENTS

QUESTION PRESENTED

STATEMENT OF THE CASE

A. Statement of the Facts

ID. "EEPRE COUPE DTOCROTIIIG 6... ccscccicccccsssececccnscssrsyeoes 1

C. State appellate court proceedings....................... 2

SUMMARY OF ARGUMENT .....................ccccccceeeeeeees 3

REASONS FOR DENYING THE PETITION ............ 5

A. Stare decisis requires that petitioner provide a

special justification for overruling Apodaca. ...... 6

B. Apodaca is not inconsistent with Blakely or

;. Petitioner’s historical arguments provide no

persuasive reason for this Court to revisit the

AI OE PRT accesses sin based peed evicd sen tnaasusacon eae 10

. McDonald did not alter the incorporation test

and does not provide a special justification for

overruling Apodaca

. Recent empirical research is not relevant to

whether this Court should revisit Apodaca and,

in all events, provides no persuasive support for

Reem HE Is css ccs cro stiessehtcstov an sucareaseunes 19

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases Cited

Alabama v. Smith,

490 U.S. 704 C1GBO) iasccavicvecesnisecctsvevensnss 18

American Pub. Co. v. Fisher,

166 U.S. 464 (1897) ...........0c0sc0 eee 10

Andres v. United States,

S33 U.S. TOO CHGS) oss cisiccdsvtesnussereeniesese ee 10

Apodaca v. Oregon,

406 U.S. 406 (1072) a0 cecccseenacesiassessst eee passim

Apprendi v. New Jersey,

§30. U.S. 466 CQ00O) wvvcdicsinentnneeeeee 8,9, 11, 23

Arizona v. Rumsey,

467 U.S. 203 (10GB 4) <........00ccxssssressceeee 7

Blakely v. Washington,

542 U.S. 296 (2004) .....cccccececcseeseeeees 2, 3, 8, 9, 11, 23

Bowen v. Oregon,

130 S. Ct G2 CQO) ocasccevcessevcsconsenesdoenereeeieteee 5

Brown v. Louisiana,

447 U.S. 323 (TRB i, 5s0c0sssindscdesugiers eee 8

Burch v. Louisiana,

441 U.S. 190 CURTG) on cscsviccissctsssseueaneeeeeee 8,15

Dickerson v. United States,

530 U.S. 488 (QOQO) on vicccs.ccvcesvacccssecusuesaseeeeee 7, 16

Gasoline Products Co. v. Champlin Refining Co.,

2B3 U.S. 94 (EGS) vecvicccisciscssccecacseteveeeee 22

Hawaii v. Mankichi,

BE BE ee, LOPE CADOS) .....0cceseccesvocessccvesissuserevncseveseaven 10

Hilton v. South Carolina Railways Comm'n,

502 U.S. 197 (1991)..................8. wcueessiuemente eProp eee 6

Howard v. Oregon,

Bae ed. ©. CSS (BOOB) .............cccccsccscosssnssasssesensensonsers 5

Hurtado v. California,

BEF U.S. B16 (1GB4) ................cccscssovsssescsessaisvares ae

Johnson v. Louisiana,

406 U.S. 356 (1972) ..... 0.00 ecceee: veuteatenns i, 19

Lee v. Louisiana,

129 S. Ct. 130 (2008) ou... eee eesesesesseesceeseees 5

Ludwig v. Massachusetts,

Mee 0.5. GIS (1976) ................ccosccseccsesessssocsecavenseven 16

Malloy v. Hogan,

es, BURG ons cccsssccsccssasesassssceersesevanvagiucdnneets 17

McDonald v. Chicago,

130 S. Ct. 3020 (2010)............. caus sans 4,5, 7, 16-19, 23

McKoy v. North Carolina,

494 U.S. 433 (1990) .................cccsccccssscesssssscccsvceccecess 8

Minneapolis & St. Louis R. Co. v. Bombolis,

241 U.S. 211 (1916) ..................ccccccececsseccosesccsececeees 18

Montejo v. Louisiana,

Es G26, OTS (QOOD) ...ccsecscaccccssrsressncnesssvasacsiedeeanees 7

Payne v. Tennessee,

BEd 0.5. SOB (1996) .............cccccccscvcvecssnessvsessecareene 6,7

Pearson v. Callahan,

129 S. Ct. 808 (2009)... eee evasiicaee Sea 7

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

BF es eee ND sv sa sepe ssn crass tetencxss ere cnaxasncanereoiess 20

Schad v. Arizona,

re. Sh UU GI BF sis scercn pesaeecn cee esdeomssapssseoees 7

State v. Bowen,

215 Or. App. 199, 168 P.3d 1208 (2007),

modified on recons., 220 Or. App. 380,

SO Fe FE Ca eoikiesetviav essa ditevastisinioe ters ae

State v. Cobb,

224 Or. App. 594, 198 P.3d 978 (2008),

review denied, 346 Or. 364, 213 P.3d 578 (2009) ....3

Sullivan v. Louisiana,

Ce Or ee ED iis ons cvccvncevccuc cucevauecahessannvscc¥ulaeecins 19

Swain v. Alabama,

ee SPs ee A OE cco caso cong en cisevoisvenn tad aes tiny 10

United States v. International Business

Machines Corp.,

BF hr ee a kiiccit pies titer tae 6

Welch v. Dept. of Highways & Pub. Transp.,

Oe Bie, 8 BED siriccsessnicieantreenenaees 6

Williams v. Florida,

399 U.S. TE (1D7O) ....cccresseeesesseses 4,11, 12, 13, 15, 16

Constitutional & Statutory Provisions

Oe, SI BO ee sin ciranthnnddl carves caccctueesaneeaiees i, 1

Cor, BEG ee Wis Bi ckdvncashdiccxisvaccnsanerdansvinnsiinns 1

Je, Se, Cee oa ekki avisisessssvianee cone ]

RF Bb SG, FO FI cis cncsedas sav sctonectcesdoiccennes 16, 18

U.S. Const. Amend. VI........... i, 4-6, 8-13, 15, 19-20, 23

Oe es NO ears ees vas cnicec cave savavenctenvs 10, 18

RF tes UG. PUIG, FRO ohne ciscccnesisnientnevsaxivireeene i, 16, 17

Other Authorities

Akhil Amar,

Reinventing Juries: Ten Suggested Reforms,

28 U.C. Davis L. Rev. 1169 (1995)...................00c00 23

B. Cardozo,

The Nature of the Judicial Process (1921)............. 20

Dennis J. Devine et al.,

Jury Decision Making: 45 Years of Empirical

Research in Deliberating Groups,

7 Psychol. Pub. Pol’y & L. 622 (2001)...........0000.... 2)

Ethan J. Leib,

Supermajoritarianism and the

American Criminal Jury,

33 Hastings Const. L. Q. 141 (2006).......... 15, 21, 22

Harry Kalven, Jr. & Hans Zeisel,

LRE AMCTICEGN TUTY (TOG) .....0.0.ccecscssscccscccesescssnseee 21

Michael H. Glasser,

Comment: Letting the Supermajority Rule:

Nonunanimous Jury Verdicts in Criminal Trials,

24 Fila. St. U. L. Rev. 659, 672 (1997).................... 21

William Blackstone,

Commentaries on the Laws

Oe C8 I ices ca encase revive ndoctahcacens a, oO, o, ii

vl

STATEMENT OF THE CASE

A. Statement of the Facts

Because the underlying facts involving petitioner’s

crime do not affect the analysis, those facts can be

summarized briefly.

Petitioner borrowed a car from a friend to run an

errand and failed to return it. (Transcript 37-38). Pe-

titioner was arrested in the car over a week later, af-

ter a police officer stopped him for a traffic violation

and discovered that the car was reported to be stolen.

(Transcript 54-56, 62).

B. Trial court proceedings

The state charged petitioner with one count of un-

authorized use of a vehicle, Or. Rev. Stat. § 164.135,

and one count of possession of a stolen vehicle, Or.

Rev. Stat. § 819.300. (App. Br. 1,' ER-2, Indictment).

Article I, section 11, of the Oregon Constitution pro-

vides in part:

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, and

not otherwisel.]

Before trial, petitioner requested that the jury be in-

structed that: “This being a criminal case, each and

every juror must agree on your verdict.” (Transcript

' “App. Br.” refers to the appellant’s brief that peti-

tioner filed in the Oregon Court of Appeals.

2

23). The trial court refused to give the requested in-

struction. (App. 5a).

The jury convicted petitioner of the unauthorized-

use-of-a-vehicle offense, but the verdict was not

unanimous. (App. 6a). Only 10 of the 12 jurors voted

to convict on the charge. (/d.). The jury acquitted peti-

tioner of the possession-of-a-stolen-vehicie offense,

but that verdict was not unanimous either. (/d.). Only

11 jurors voted to acquit petitioner on that charge.

(Id.).

C. State appellate court proceedings

Petitioner appealed, contending that the trial

court had erred in refusing to give his requested jury

instruction. Petitioner relied on Blakely v. Washing-

ton, 542 U.S. 296 (2004), and specifically drew on the

following passage from that opinion:

This rule [that, generally, any fact that

increases the penalty for a crime beyond

the statutory maximum must be submit-

ted to a jury, and proved beyond a rea-

sonable doubt] reflects two longstanding

tenets of commen-law criminal jurispru-

dence: that the “truth of every accusa-

tion” against a defendant “should after-

wards be confirmed by the unanimous

suffrage of twelve of his equals and

neighbours,” 4 W. Blackstone, Commen-

taries on the Laws of England 343 (1769)

* KOK

542 U.S. at 301 (emphasis added). Petitioner argued

that Apodaca was inconsistent with that sentence

3

from Blakely. (App. 10a (quoting Blakely, 542 U.S. at

301 (in turn quoting 4 W. Blackstone, Commentaries

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

The Oregon Court of Appeals summarily affirmed,

citing its decision in State v. Cobb, 224 Or. App. 594,

198 P.3d 978 (2008), review denied, 346 Or. 364, 213

P.3d 578 (2009). (App. 1a). In Cobb, the Oregon Court

of Appeals rejected the claim that Apodaca was no

longer good law. The court expla.>ed that “to the ex-

tent that defendant now invokes Blakely v. Washing-

ton, 542 U.S. 296 (2004), as overruling Apodaca uv.

Oregon, 406 U.S. 404 (1972), sub silentio, we have

previously rejected that contention. State v. Bowen,

215 Or. App. 199, 168 P.3d 1208 (2007), modified on

recons., 220 Or. App. 380, 185 P.3d 1129 (2008).”

Cobb, 224 Or. App. at 596-87, 198 P.3d at 979.

Petitioner filed a petition for review to the Oregon

Supreme Court, renewing his argument that Apodaca

was no longer good law in light of the Blakely deci-

sions and, in particular, the statement from Blakely

cited above. (App. 15a-16a). The Oregon Supreme

Court denied review. (App. 3a).

SUMMARY OF ARGUMENT

Petitioner asks this Court to revisit and overrule a

decision it rendered thirty-eight years ago, even

though this Court repeatedly has cited that decision

without reservation (beyond noting the unusual split

in the case) and even though Oregon has relied on

that decision since 1972. Principles of stare decisis

counsel that this Court not reconsider Apodaca unless

petitioner provides a special justification for doing so

4

and makes a compelling showing that the Court’s ear-

lier decision is incorrect. Petitioner fails to do so.

In arguing that Apodaca is wrong, petitioner relies

on this Court’s recent quotations from Blackstone,

who commented that the truth of every accusation

against a criminal defendant should be confirmed by

the unanimous suffrage of twelve of his equals and

neighbors. Petitioner contends that Apodaca is incon-

sistent with those recent decisions quoting Black-

stone. But there is no inconsistency. Those recent de-

cisions dealt with other issues, and petitioner’s reli-

ance on those decisions is misplaced.

Neither does history support overruling the inter-

pretation of the Sixth Amendment that this Court

adopted in Apodaca. The Sixth Amendment does not

explicitly include the right to a unanimous jury ver-

dict, and this Court has held that other settled fea-

tures of the common-law jury, including the require-

ment of a 12-person jury (Williams v. Florida, 399

U.S. 78 (1970)), are not included in the Sixth

Amendment right to a jury the trial. Indeed, the

Sixth Amendment was adopted after the Congress

rejected an earlier version of the amendment that

specifically would have required unanimous verdicts.

Although the reason for that rejection is not clear,

this Court has held that the more plausible explana-

tion is that Congress intended that omission to have

some substantive effect. Petitioner would give it none.

Nothing in McDonald v. Chicago, 130 S. Ct. 3020

(2010), provides a special justification for overruling

Apodaca. In McDonald, the plurality discussed and

applied the rule that incorporated Bill of Rights pro-

5

tections apply identically to the States and the Fed-

eral Government. That rule was well established at

the time of Apodaca. McDonald did not alter the in-

corporation test and does not provide a compelling

basis to reconsider Apodaca.

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 deliberation time between ju-

ries 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

deliberations, that disparity does not affect the accu-

racy of the ultimate verdict. At most, considered as a

whole, the empirical research simply illustrates 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 do what it has done in other recent

cases in which the petitioners have contended that

the Sixth Amendment requires unanimous jury ver-

dicts in state court criminal cases: deny the petition.’

REASONS FOR DENYING THE PETITION

The Sixth Amendment provides, in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and

2 Bowen v. Oregon, 130 S. Ct 52 (2009) (No. 08-1117);

Howard v. Oregon, 129 S. Ct, 633 (2008) (No. 08-6449); Lee

v. Louisiana, 129 S. Ct. 130 (2008) (No. 07-1523)

6

public trial, by an impartial jury of the

State and district wherein the crime

shall have been committed, which dis-

trict shall have been previously ascer-

tained by law * * *.

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

cifically 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. 406.

A. Stare decisis requires that petitioner provide

a special justification for overruling Apo-

daca.

“Time and again, this Court has recognized that

‘the doctrine of stare decisis is of fundamental impor-

tance to the rule of law.” Hilton v. South Carolina

Railways Comm’n, 502 U.S. 197, 202 (1991) (quoting

Welch v. Dept. of Highways & Pub. Transp., 483 U.S.

468, 494 (1987)). Stare decisis “promotes the even-

handed, predictable, and consistent development of

legal principles, fosters reliance on judicial decisions,

and contributes to the actual and perceived integrity

of the judicial process.” United States v. International

Business Machines Corp., 517 U.S. 843, 856 (1996)

(quoting Payne v. Tennessee, 501 U.S. 808, 827

(1996)). “Adherence to precedent promotes stability,

predictability, and respect for judicial authority.” Hil-

ton, 502 U.S. at 202.

In light of those considerations, this Court has set

the bar very high for overruling its prior decisions:

Even in constitutional cases, this Court will not de-

part from the doctrine of stare decisis absent a “spe-

7

cial justification.” See Dickerson v. United States, 530

U.S. 428, 443 (2000) (“even in constitutional cases,

the doctrine [of stare decisis] carries such persuasive

force that we have always required a departure from

precedent to be supported by some ‘special justifica

tion”; internal quotation marks and citations omit-

ted); Arizona v. Rumsey, 467 U.S. 203, 212 (1984)

(“lajlthough adherence to precedent is not rigidly re-

quired in constitutional cases, any departure from the

doctrine of stare decisis demands special justifica-

tion”).

Among the “factors in deciding whether to adhere

to the principle of stare decisis” are “the antiquity of

the precedent” and “the reliance interests at stake|.|”

Montejo v. Louisiana, 129 S. Ct. 2079, 2088-89 (2009).

As noted, Apodaca is thirty-eight years old, and Ore-

gon 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 Mem-

bers of the Court in later decisions and |has] defied

consistent application by the lower courts,’ these fac-

tors weigh in favor of reconsideration.” Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009) (quoting Payne,

501 U.S. at 829-30). The decision in Apodaca is un-

ambiguous and easy to apply. Moreover, beyond not

ing that Apodaca “was the result of an unusual divi-

sion among the Justices,” McDonald, 130 5S. Ct. at

3035 n. 14, the Court has not questioned Apodaca

and has cited it without reservation. See Schad v.

Arizona, 501 U.S. 624, 634 n. 5 (1991) (“a state crimi-

nal defendant, at least in noncapital cases, has no

8

at to a unanimous jury verdict”); Burch v

, 441 U.S. 130, 136 (1979) (Court “con

in 1972 that a jury’s verdict need not be

Ulta us to satisfy constitutional requirements”);

McKey v. North Carolina, 494 U.S. 433, 468 (1990)

(Scalia, J., dissenting) (noting that the Court has “ap-

proved verdicts by less than a unanimous jury,” citing

Apodaca); Brown v. Louisiana, 447 U.S. 3238, 330-31

(1980) (noting that the Court has held that “the con

stitutional guarantee of trial by jury” does not pre

scribe “the exact proportion of the jury that must con-

cur in the verdict,” citing Apodaca).

Because of the respect that stare decisis demands,

because Apodaca has been settled law for thirty-eight

years, and because this Court subsequently has cited

Apodaca’s holding without reservation (other than

noting the “unusual” split in the case), this Court

should consider overruling it only if petitioner can

provide a “special justification” for doing so. He has

not done so, and this Court should not grant certio

rari.

B. Apodaca is not inconsistent with Blakely or

Apprendi.

In urging this Court to overrule Apodaca, peti

tioner and amici rely on this Court’s recent decisions

in Blakely and Apprendi v. New Jersey, 530 U.S. 466

(2000), which they claim are “inconsistent” or even

“irreconcilable” with Apodaca. (See, e.g., Pet. 11, 23

25; Oregon Professors, 11-12; Oregon Federal Public

Defender, 10-11). Throughout this case, petitioner has

focused, in particular, on the statement in Blakely

that the Sixth Amendment requires “that the ‘truth of

9

every accusation’ against a defendant ‘should after-

wards be confirmed by the unanimous suffrage of

twelve of his equals and neighbours.” (App. 10a, App.

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

Blackstone, supra, at 343))) (emphasis added by peti-

tioner in App. Br.). Apparently, to varying degrees,

petitioner and amici believe that, when the Court

quoted Blackstone in its discussion of when the Sixth

Amendment requires 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 Blakely nor Apprendi dealt with the

issue of whether the Sixth Amendment requires

unanimous jury verdicts. The issue in Blakely and

Apprendi was whether basing an enhanced sentence

on fact-finding by the trial court violated the peti-

tioner’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 accusation” against a defendant

should be “confirmed 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

context, involving issues quite different than the one

presented here. Apodaca simply is not “inconsistent”

with Blakely and Apprendi.®

3 Petitioner also contends that this Court “has repeat-

edly held that the Sixth Amendment mandates jury una-

nimity for federal convictions.” (See Pet. 2, referencing Pet.

5). But the three decisions that petitioner cites to support

that assertion offer little support for his cause. In Hawaii

10

C. Petitioner’s historical arguments provide no

persuasive reason for this Court to revisit

the result in Apodaca.

Petitioner also argues that Apodaca is inconsis-

tent with this Court’s historical approach to inter-

preting the Sixth Amendment jury-trial right. (Pet.

11-12). The text of the Sixth Amendment does not

reference a unanimity requirement. But petitioner

argues that, under the common law, “(t]he right to a

unanimous jury verdict was firmly established when

v. Mankichi, 190 U.S 197, 211-12 (1903), and Swain uv.

Alabama, 380 U.S. 202, 211 (1965), the references to jury

unanimity were dicta. In Mankichi, the issue was whether

the criminal procedures embodied by the Fifth Amend-

ment’s Grand Jury Clause and the Sixth Amendment’s

Jury Trial Clause applied to the Territory of Hawaii at

that time, and the Court concluded that they did not. 190

U.S. at 209-18. Swain involved an equal-protection chal-

lenge to the composition of a jury. 380 U.S. 202. 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 “[uJnanimity

in jury verdicts is required where the Sixth and Seventh

Amendments apply,” citing only American Pub. Co. v.

Fisher, 166 U.S. 464 (1897). Andres, 333 U.S. at 748, 748

n. 13. In American Pub. Co., which dealt w'th the right to

jury trial under the Seventh Amendment, the Court spe-

cifically noted that “the power of a state to change the rule

in respect to unanimity of juries is not before us for con-

sideration.” 166 U.S. at 468 (citations omitted). When that

issue came before the Court in Apodaca, the Court ruled

that unanimity is not required under the Sixth Amend-

ment.

11

the Bill of Rights was framed.” (Pet. 11). This Court

accepted that reading of history in Apodaca: it had

been “settled” since “the latter half of the 14“ century

* * * that a verdict had to be unanimous” to convict

someone of a crime, and that requirement “had be-

come an accepted feature of the common-law jury by

the 18% century.” Apodaca, 406 U.S. at 407 n. 2, 408

(footnote omitted). But the fact that a feature of the

common-law jury was settled when the Bill of Rights

was adopted does not establish that the particular

feature was incorporated into the Sixth Amendment.

This Court clearly has rejected petitioner’s histori-

cal argument and held that not all features of the

common-law jury are included in and guaranteed by

the Sixth Amendment. Notably, although the 12-

person jury also was an accepted feature of the com-

mon-law jury at the time of the Founding—and al-

though Blackstone mentions that numerical common-

law requirement in the same sentence from his

Commentaries that petitioner 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, 399 U.S. at 86.

The Court reviewed the relevant constitutional

history in detail in Williams, 399 U.S. at 93-99, and

summarized it in Apodaca, 406 U.S. at 409. The his-

tory underlying the Sixth Amendment “casts consid-

erable doubt on the easy assumption * * * that if a

given feature existed in a jury at common law in

1789, then it was necessarily preserved in the Consti-

tution.” Williams, 399 U.S. at 92. Instead, although

the historical record can lead to competing conclu-

12

sions, the stronger inference is that one of the fea-

tures of the common-law jury that the Framers did

not intend to include in the Sixth Amendment was

the requirement of a unanimous jury verdict.

In Apodaca, this Court summarized the history of

the Sixth Amendment. The Court concluded that

“(tlhe most salient fact in the scanty history of the

Sixth Amendment” is that, although “as it was intro-

duced * * *, the proposed Amendment previded for

trial ‘by an impartial jury of the freeholders of the

vicinage, with the requisite of unanimity for convic-

tion * * * and other accustomed requisites,” ulti-

mately the unanimity and “accustomed requisites”

provisions were not included. 406 U. S. at 409 (em-

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

ence committee “refused to accept not only the origi-

nal * * * language but also an alternate suggestion * *

* that juries be defined as possessing ‘the accustomed

requisites.” Jd. (citation omitted).

This Court noted in Apodaca that, as it had “ob-

served in Williams, one can draw conflicting infer-

ences from this legislative history.” 406 U.S. at 409.

One possible inference 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. A contrary explanation,

which we found in Williams to be the

more plausible, is that the deletion was

intended to have some substantive effect.

13

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

phasis added)).

Thus, contrary to petitioner’s claim that the his-

tory of the Sixth Amendment supports his argument

that that provision 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 in-

clude such a right is that the deletion “was intended

to have seme substantive effect.” “(C]ontemporary

legislative and constitutional provisions indicate that

where Congress wanted to leave nc doubt that it was

incorporating existing common-law features of the

jury system, it knew how to use expres’ *~guage to

that effect.” Williams, 299 U.S. at 97. Pe. sner’s his-

torical argument conflicts with Williams and Apo-

daca, and the conclusions that the Court drew from

the historical record in those cases.

In Apodaca, this Court also reviewed the reasons

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 re-

quirement of a 12-person jury—the requirement of a

unanimous jury verdict appears to have been a “his-

torical accident” that had its origins in outmoded me-

dieval concepts.

This Court has identified “[a]t least four [possible]

explanations * * * for the development of unanimity”

at common law. Apodaca, 406 U. S. at 407 n. 2. All of

them are either outmoded or historical accidents. The

first explanation is that “unanimity developed to

compensate for the lack of other rules insuring that a

14

defendant received a fair trial.” Jd. (citations omit-

ted). The “second theory is that unanimity arose out

of the practice in the ancient mode of trial by com-

purgation of adding to the original number of 12 com-

purgators until one party had 12 compurgators sup-

porting his position; the argument is that when this

technique * * * was abandoned, the requirement that

one side obtain the votes of all 12 jurors remained.”

Id. (citations omitted).

“A third possibility is that unanimity developed

because early juries, unlike juries today, personally

had knowledge of the facts of a case,” that “the me-

dieval mind assumed there could be only one correct

view of the facts,” and that if either all or a minority

of the jurors “declared the facts erroneously, they

might be punished for perjury.” Jd. (citations omit-

ted}. “Given a view that minority jurors were guilty of

criminal perjury, the development of a practice of

unanimity would not be surprising.” Jd. “The final

explanation is that jury unanimity arose out of the

medieval concept of consent.” Id. To the medieval

mind, the concept of consent “carried with it the idea

of * * * unanimity[.]” Jd. (internal quotation marks

and citation omitted). Fven in 18% century America,

there was “a similar concern that decisions binding on

the community be taken unanimously.” 7d. (citation

omitted).

Those historical reasons for the common-law re-

quirement of a unanimous jury verdict have little, if

any, force now. Instead, “[mlany of the possible his-

toricai reasons for the unanimity requirement are

ones that are substantially less persuasive now—and

15

the Court itself has recognized this.” Ethan J. Leib,

Supermajoritarianism and the American Criminal

Jury, 33 Hastings Const. L. Q. 141, 142 (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 substantial protections for de-

fendants.” Leib, supra, at 142 (quoting Apodaca, 406

U. S. at 407 n. 2) (footnote omitted). If unanimity

“arose out of the practice in the ancient mode of trial

by compurgation”—a mode of trial where certain

kinds of witnesses essentially became jurors—that

practice “has very little relevance to contemporary

trials, where we’d never allow a witness on the

jury[.]” Leib, supra, at 143. “[Wle should have no alle-

giance to a decision rule that arose out of a jury prac-

tice that has so little to do with our own.” Id. “If the

unanimity requirement arose out of the medieval idea

that reasonable people cannot disagree and that mi-

nority jurors must be lying, we must certainly aban-

don it in our pluralistic society.” Id. (footnote omit-

ted). Given the outdated rationales for the common-

law requirement of unanimity, reading it into the

Sixth Amendment would be to “ascribe a blind for-

malism 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 “special justification,”

Dickerson, 530 U.S. at 443 (internal quotation marks

omitted), to disregard principles of stare decisis and

overrule Apodaca. Instead, as this Court has recog-

nized, Apodaca’s treatment of history parallels the

Court’s treatment of history in Williams. See Burch,

16

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 requirements, even though unanimity

had been the rule at common law”); Ludwig v. Massa-

chusetts, 427 U.S. 618, 625 (1976) (a “[s]imilar analy-

sis [to that in Williams] led to the holding in Apodaca

‘nat the jury’s verdict need not be unanimous”). Peti-

tioner’s argument would require reconsideration not

only of Apodaca but also the basis for Williams. Peti-

tioner is asking this Court to plow ground that it has

already covered in detail. The Court should refuse to

do so.

D. McDonald did not alter the incorporation

test and does not provide a special justifica-

tion for overruling Apodaca.

Petitioner asserts that this Court’s recent decision

in McDonald provides a compelling basis to recon-

sider and overrule Apodaca. (Pet. 5-11). In McDonald,

130 S. Ct. 3020, the Court held that the Second

Amendment right to keep and bear arms applies to

the States under the Fourteenth Amendment. The

plurality reached that result under the Due Process

Clause. 130 S. Ct. at 3050. Justice Thomas provided

the fifth vote in his concurrence. Jd. at 3058-88 (Tho-

mas J., concurring in part and concurring in judg-

ment). Justice Thomas rejected the view that the

right was incorporated under the Due Process Clause,

id. at 3061-63; but he concluded that it was incorpo-

rated under the Fourteenth Amendment’s Privileges

or Immunities Clause. Jd. at 3088.

ee

17

In McDonald, the plurality referenced the rule

that “incorporated Bill of Rights protections ‘are all to

be enforced against the States under the Fourteenth

Amendment according to the same standards that

protect those personal rights against federal en-

croachment.” 130 S. Ct. at 3035 (quoting Malloy v.

Hogan, 378 U.S. 1, 10 (1964)). Petitioner asserts this

court should overrule Apodaca in light of that analy-

sis because, in his concurrence in Apodaca, Justice

Powell took a different view of incorporation. (Pet. 5-

11).

McDonald does not provide a special justification

to depart from the doctrine of stare decisis and over-

rule Apodaca. In McDonald, the Court did not alter

the incorporation test but instead applied “the [incor-

poration] standard that is well established in [the

Court’s] caselaw.” 130 S. Ct. at 3026. The rule that

incorporated Bill of Rights provisions apply equally to

the States and the Federal Government was well es-

tablished at the time of Apodaca. See McDonald, 130

S. Ct. at 3035 (plurality opinion) (quoting Court’s

1964 Malloy decision for rule and citing several other

cases from same period). Nothing in the Court’s ap-

plication of that rule in McDonald was remarkable,

much less provides a compelling basis to reconsider

and overrule Apodaca.

Yet petitioner asserts that McDonald signaled, or

at least pointedly suggested, that Apodaca is not enti-

tled to deference under the doctrine of stare decisis.

(Pet. 11, 28-29). The plurality in McDonald explained

that, “if a Bill of Rights guarantee is fundamental

from an American perspective, then, unless stare de-

18

cisis counsels otherwise, that guarantee is fully bind-

ing on the States[.]” 1380 S. Ct. at 3046 (footnote omit-

ted). In its accompanying footnote, the opinion cited

the Court’s decisions that the Fifth Amendment’s

Grand Jury Clause and the Seventh Amendment’s

civil-jury requirement do not apply to the States and

explained that those decisions “predate the era of se-

lective incorporation.” Jd. at 3046 n. 30, citing Hur-

tado v. California, 110 U.S. 516 (1884) (indictment)

and Minneapolis & St. Louis R. Co. v. Bombolis, 241

U.S. 211 (1916) (civil jury). Petitioner opines that the

plurality “conspicuously omitt[ed] Apodaca from the

list of cases that might be preserved by stare decisis.”

(Pet. 28-29).

Petitioner misses the point. A change in the law is

a recognized argument in favor of reconsidering an

earlier decision. See Alabama v. Smith, 490 U.S. 794,

803 (1989) (a “later development of * * * constitu-

tional law” is a basis for overruling a prior decision).

Indeed, that was the basis for McDonalc-.. In McDon-

ald, the Court concluded that its prior decisions hold-

ing that the Second Amendment was not incorporated

against the States did not “preclude” the Court from

considering whether the Due Process Clause incorpo-

rated the right because the Court’s earlier decisions

“preceded” the era of selective incorporation. 130 S.

Ct. at 3031. In its footnote, the plurality in McDonald

merely was acknowledging that any similar reconsid-

eration of the Hurtado and Bombolis holdings—which

also “predate the era of selective incorporation’—

would be subject to stare decisis considerations. In

contrast, Apodaca was decided during the era of se-

lective incorporation, and the incorporation test has

19

not changed since that decision. The McDonald plu-

rality recognized as much by omitting Apodaca from

the list of decisions theoretically subject to reconsid-

eration based on a change in the law.‘

E. 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.

Petitioner and amici invoke empirical research to

demonstrate the wisdom of a unanimity requirement.

As discussed above, before this Court revisits Apo-

daca, petitioner must provide a “special justification”

for doing so, which would require considerably more

than a suggestion that jury unanimity may be “wiser”

than non-unanimous juries. As this Court has recog-

nized, “no judicial system could do society’s work if it

* Petitioner also is mistaken in asserting that Sullivan

v. Louisiana, 508 U.S. 275 (1993), undermines Apodaca.

(Pet. 31). In Sullivan, the Court explained that “the jury

verdict required by the Sixth Amendment is a jury verdict

of guilty beyond a reasonable doubt.” 508 U.S. at 278. But

in Johnson v. Louisiana, and Apodaca, the Court rejected

the argument that jury unanimity is necessary to give sub-

stance to the reasonable-doubt standard. See Johnson, 406

U.S. at 358-63 (rejecting argument); Johnson, 406 U.S. at

368 (Powell J., concurring) (agreeing and joining opinion);

Apodaca, 406 U.S. at 412 (plurality opinion) (explaining

that the reasonable-doubt requirement is rooted in due

process and that Johnson rejected argument that non

unanimous verdicts undermine reasonable-doubt stan-

dard). Sullivan does not provide a special justification to

overrule Apodaca.

20

eyed each issue afresh in every case that raised it.”

Planned Parenthood 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 holding,

“its judgment is customarily informed by a series of

prudential and pragmatic considerations designed to

test the consistency of overruling a prior decision

with the ideal of the rule of law[.]” Jd. at 854.

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 precedent. The question

here—as it was in Apodaca—is whether the Sixth

Amendment prohibits non-unanimous juries; nothing

about that constitutional question has changed in the

38 years since this Court decided Apodaca. That peti-

tioner and amici can point to some studies suggesting

that states should not permit non-unanimous juries

says nothing about whether the states cannot permit

non-unanimous juries. States remain free to make

policy choices so long as those choices do not infringe

upon constitutional protections and liberties. In all

events, nothing since Apodaca—empirically or expe-

rientially—has demonstrated that this Court’s deci-

sion in Apodaca is unworkable or unsound, or sug-

gests that Apodaca was based on a fundamentally

mistaken, or subsequently discredited, view of jury

dynamics.

Petitioner and amici rely on conclusions from

various studies that jurors who are not required to

achieve unanimity evaluate the evidence less thor-

21

oughly, spend less time deliberating, and take fewer

ballots. (See, e.g., Pet. 20, 20 n. 4; Oregon Professors,

6-8; Oregon Federal Public Defender, 17). They ap

parently believe that that evidence undermines this

Court’s conclusion in Apodaca that a unanimity re-

quirement “does not materially contribute to the ex-

ercise” 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 deliberations,

that disparity does not affect the accuracy of the ul

timate verdict.

The “most comprehensive jury study” conducted in

the past thirty years has shown a “minimal disparity”

between the amount of time that juries spend delib

erating 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); Michael H. Glasser, Comment: 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 deliberation,

that time is often spent trying to convince one or two

holdouts. And in jurisdictions that require jury una-

nimity, those holdout jurors often simply succumb to

the “pressure for unanimous agreement|.]” Leib, su

22

pra, at 145. Hence, contrary to petitioner’s assump

lions, a jury unanimity requirement does not neces

sarily guarantee or promote “open-minded” debate in

an ideally deliberative environment; rather, the time

spent attempting to achieve unanimity is often spent

pressuring and cajoling the few holdouts into acquies

cence,

Of greater significance, however, is that the de-

gree and nature of the deliberations is not directly

proportional to the accuracy of any verdict. Most ex

perts agree that the accuracy of the ultimate verdict

is not contingent upon whether jury unanimity is re-

quired. See Leib, supra, at 144 (“most agree that the

outcomes of verdicts do not significantly vary” de

pending upon whether there exists a unanimity rule

or not). Permitting juries to reach non-unanimous

verdicts, therefore, 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 resolution of

factual issues. Apodaca, 406 U.S. at 410-11; Gasoline

Products Co. v. Champlin Refining Co., 283 U.S. 494,

498-99 (1931).

Petitioner and amici further contend that allowing

non-unanimous jury verdicts marginalizes jurors who

are members of minority groups. (Pet. 20, 20 n. 4,

Oregon Federal Public Defender, 17). They rely on

empirical research that, in their view, demonstrates

that the non-unanimous jury scheme in effect silences

dissenting and minority voices. (/d.). But unanimity

cannot guarantee mutual tolerance. Akhil Amar, Re

inventing Juries: Ten Suggested Reforms, 28 U.C

23

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 per-

sonalities of the jurors. Glasser, supra, at 674. In fact,

it is at least equally likely that the non-unanimous

jury system actually encourages the minority to

speak up, because they need to convince fewer other

jurors to come to their side. Id.

In sum, to support overruling a constitutional de-

cision that Oregon has been relying upon for 38 years,

petitioner and amici must provide something more

compelling than some recent analyses of jury behav-

ior. That is particularly true when the _ proffered

showing consists of an incomplete picture of how the

non-unanimity requirement affects jury deliberations.

Wiser or not, unanimous juries are not a Sixth

Amendment mandate. This Court thus need not re-

consider the system that Oregon’s Constitution re-

quires Oregon to follow and that this Court already

has upheld.

CONCLUSION

In the nearly 40 years that have passed since this

Court decided Apedaca, nothing has changed. Peti-

tioner asks this Court to grant his petition and recon-

sider Apodaca based on quotations from Blakely and

Apprendi that are taken out of context, history that

this Court already has concluded does not support pe-

titioners argument, incorporation analysis from

McDonald that was well established when this Court

decided Apodaca, and empirical research that does

24

not yield any clear conclusion that unanimous jury

verdicts are necessarily preferable, let alone constitu-

tionally required. As it did at least once in 2009 and

twice in 2008, note 2, supra, this Court should decline

the invitation and deny the petition.

Respectfully submitted,

JOHN R. KROGER

Attorney General of Oregon

MARY H. WILLIAMS

Solicitor General

DOUGLAS M. PETRINA

Assistant Attorney General

Counsel for Respondent