Amicus Curiae Brief — Herrera v. Oregon

i) an

No. 10-344

\

IN THE

Supreme Court of the Anited States

ALONSO ALVINO HERRERA

Pettttoner,

U,

STATE OF OREGON

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF OREGON

AMICUS BRIEF OF

LOUISIANA ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND

ORLEANS PUBLIC DEFENDERS

In Support of Petitioner

G. BEN COHEN* JEE Y. PARK

636 BARONNE STREET ORLEANS PUBLIC DEFENDERS

NEW ORLEANS, LA. 70113 2601 TULANE AVENUE

504-529-5955 NEW ORLEANS, LA 70119

benc@thejusticecenter.org

JOSHUA PERRY

JUVENILE REGIONAL SERVICES

1820 ST. CHARLES AVENUE

NEW ORLEANS, LA 70130

*Counsel of Record

TABLE OF CONTENTS

TABLE OF CONTENTS.....

TABLE OF AUTHORITIES ........... :

INTERESTS OF AMICI CURIAE......

SUMMARY OF THE ARGUMENT....................

REASONS FOR GRANTING THE WRIT ..........0..... 8

I. BOTH THE EXPERIENCE OF LOUISIANA

PRACTITIONERS AND THIRTY-FIVE YEARS

OF EMPIRICAL RESEARCH CAST GRAVE

DOUBT ON THE APODACA COURT'S

ASSUMPTION THAT THERE IS NO

SIGNIFICANT DIFFERENCE BETWEEN THE

DELIBERATIVE PROCESS AND THE

SUBSTANTIVE RESULTS IN UNANIMOUS

AND NON-UNANIMOUS JURIES........0.0..00..... lt

A. Empirical Research Has’ Shown - that

Unanimous Juries Are More Thorough,

Deliberate More Carefully, and Arrive at

More Reliable Results than Non-unanimous

a Tg ER eee ECM RIS a 1

. Louisiana’s Experience Has Shown that Non-

unanimous Juries Present an Unacceptable

Risk of Rushed and Unreliable Decision-

a Or ode sage pasanawarevadans EN aes. ee

Il. LOUISIANA’S NON-UNANIMOUS JURIES,

WHICH EMERGE FROM A TROUBLINGLY

RACIST HISTORY, CONTINUE TO HAVE

THE Ee FECT OF EXCLUDING,

MARGINALIZING, AND SILENCING THE

VOICES OF RACIAL AND KTHNIC

MINORITIES AND WOMEN .....................cc0eee0s 20

A. Loutsiana’s Majority Verdict System Was

Introduced in 1898 by a Constitution

Explicitly Designed to Disenfranchise and

Silence the African-American Population.....22

Non-unanimous Jury Schemes Silence and

Marginalize the Voices of African-Americans,

Other Racial and Ethnic Minorities, and

Women

CONCLUSION............ Seoan eae |

TABLE OF AUTHORITIES

Cases

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

Barbour v. Louisiana (10-689) a passim

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

Duncan v. Louisiana, 391 U.S. 145 (1968)............ 31

Hunter v. Underwood, 471 U.S. 222 (1985) .......... 22

J.E.B. vu. Ala. ex rel. T.B.,511 U.S. 127 (1994) ..... 31

Johnson v. Louisiana, 406 U.S. 356 (1972)....passim

McDonald v., City of Chicago, 130 8S. Ct. 3020 (2010)

Miller-El v. Dretke, 544 U.S. 660 (2005) ............... 31

Snyder v. Louisiana, 1288. Ct. 1203 (2008)

State v. Barbour, 2009-1258 (La.App. 4 Cir.

03/24/10); 35 So. 3d 1142..... siudabakacanhesbenceeaiwas caus 10

State v. Bertrand, 2008-2214 (La. 3/17/09): 6 So.3d

State v. Blanchard, 2010-0014 (La.App. 1 Cu.

Ui oO ae 8 es 8: . yee Rar ten ENS g

State v. Blow, 45,415 (La.App. 2 Cir. 08/11/10);

2010 La. App. LEXIS 1148

State v. Cheatteam, 07-272 (La.App.

05/27/08); 986 So. 2d 738

State v. Collier, 553 So. 2d 815 (La. 1989

State v. Every, 2009-0721 (La.App. 4 Cir. 03/24/10);

BO OO, Te Bice escccccccenccccescess eu espaades sitdacu deveesecnaant 9

State v. Green, 2010-0008 (La.App. 4 Cir. 11/17/10);

2010 La. App. LEXIS 1598.................

State v. Jones, 2009-0751 (La.App. 1 Cir. 10/23/09);

Sy en Oo) Cae er cuaaeae 1]

State v. Jones, 2009-2261 (La.App. 1 Cir. 05/07/10);

BNP ic: I sabe indi udcuccdeescduaseievaseedanes aeaeera ea q

State v. Lawrence, 2009-1637 (La.App. 4

08/25/2010); 2010 La. App. LEXIS 1188

State v. Martin, 2009-1368 (La.App. 1 Cir.

ROR BD lO; BEE Bens isncscccnscvisscsarscsvecsssecsaxcas 9

State uv. McKnight, 09-1186 (La.App.

04/14/10); 37 So. 3d 1050

State v. Moody, 2009-1394 (La.App. 4 Cir. 04/21/10);

Se Te I paca cnc cons aoncae cs tse wlavitn aes eee 9

State v. Raymond, 08-1204 (La.App. 5 Cir

PM I, LES IOs Gk OE Peis ccvecccceccacvcccecessces aa

State v. Samuels, 2010-0821 (La.App. 1 Cir

10/29/10); 2010 La. App. Unpub. LEXIS 584...... 9

State v. Smith, 09-100 (La.App. 5 Cir. 08/25/09); 20

Se | 3 eer ee ee eee ae

State v. Taylor, 2009-0041 (La.App. 4 Cir. 09/04/09):

3 pt

4 ee F *. ) BA ae EMCO Pay MRS ERTS RATIO FOA I |

State v. Thomas, 10-220 (La.App. 5 Cir. 11/09/10);

ED Be, FAT, ER LG vaio seccssscsnsesescscocscccesces LU

State v. Williams, 2009-0602 (La.App. 4 Cir.

AF ae FEAR, We GI, CEE a hse ccescsdccaccocsscseveveccsesesescens LO

In re Winship, 397 U.S. 358 (1970) .... 18

Other Authorities

A. Voorhies, A Treatise on the Criminal

Jurisprudence of Louisiana, Bloomfield & Steel

(15GU) 00s... didddbebaminedianadandtusbecavnaadanyenusains cacdanunas 2]

W. Billings & E. Haas, In Search of Fundamental

Law: Louistana’s Constitutions, 1812-1874, The

Center for Louisiana Studies (1993)............... 20, 2:

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

Years of Empirical Research on _ Deliberating

Groups, 7 Psychol. Pub. Pol’y & L. 622 (2001)..... 26,

29,30

James H. Davis, et al., The Decision Processes of 6-

ana 12-Person Mock Juries Assigned Unanimous

and Two-Thirds Majority Rules, 32 J. Personality

ee Br 0 I TNE cee cenasicae ss ccascaccatsasccschisases 14

Kim ‘Taylor-Thompson, Empty votes in Jury

Deliberations, 113 Harv. L. Rev. 1261 (2000) .. 15

30

Reid Hastie, Steven D. Penrod & Nancy

Pennington, Inside the Jury 108 (1983) ............ 14

Richard A. Primus, When Democracy is Not Self-

Government: Toward a Defense of the Unanimity

rule for Criminal Juries, 18 Cardozo L. Rev. 1417

NR re Cee oa aR louie Rr at L5

Revisiting the Unanimity

Non-

Rev. 20]

1. LO, LO

Shari Diamond, et al.,

Requirement: The Behavior of _ the

Unanimous Civil JurylI, 100 Nw. U. L.

(2006)

Valerie P. Hans, The Power of the Twelve: The

Impact of Jury size and Unanimity on Civil Jury

Decision Making, 4 Del. L. Rev. 2 (2001)........... 15

INTERESTS OF AMICI CURIAE!

The Louisiana Association of Criminal

Defense Lawyers (LACDL) is a_- voluntary

professional organization of private and _ public

defense attorneys practicing in the _ state of

Louisiana. LACDL counts among its members the

vast majority of the criminal defense bar in

Louisiana. LACDL’s mission includes’ the

protection of individual rights guaranteed by the

Louisiana and United States Constitutions and,

occasionally, acting as amicus curiae in cases where

the rights of all are implicated. LACDL is, from

time to time, invited by the Louisiana Supreme

Court to submit amicus briefs in appropriate cases

The Orleans Public Defenders (OPD) is the

largest full-time public defender office in the state

of Louisiana. Its staff attorneys represent more

than ninety percent of defendants in the Criminal

District Court of Orleans Parish, where more than

12,000 new state cases were accepted for

prosecution in 2009. Lawyers from the Orleans

Public Defenders have’ represented criminal

|! Pursuant to this Court’s Rule 37, amici state that no counsel

for any party authored this brief in whole or in part, and no

person or entity other than amici made a monetary

contribution to the preparation or submission of the brief

Counsel of record for all parties were timely notified and have

consented tw the filing of this brief

defendants in thousands of jury trials since thi

Court's decision in Apodaca v. Oregon, 406 U.S. 404

(1972)

Amict have an interest separate from the

Petitioner and Respondent in this case. Amici

respectfully suggest that this Court consider this

case along with the petition for certiorari now

before the Court and filed in Barbour v. Loutsiana

(10-689), to determine the constitutionality of the

non-unanimous jury verdict

INTRODUCTION

Louisiana and Oregon are the only two

states to deny citizens the right to a presumption of

innocence until found guilty beyond a reasonable

doubt by a unanimous jury. Amici have seen

firsthand, that non-unanimous junmes work to

exclude and silence minority voces, and contribute

to rushed and unreliable verdicts. Amici represent

chents who have been, or imminently stand to be,

profoundly injured by Louisiana’s non-unanimou

jury scheme, and who therefore have a_ keen

interest in this Court's revisiting its fractured

determination in Apodaca

Amicus LACDL has filed briefs addressing

the non-unanimous jury verdict issues presented to

this Court in Lee v. Louisiana, no. 07-1523, and

Bowen v. Oregon, no. 08-1117. In both pleadings,

LACDL laid out the sordid history and racist

motives that drove the adoption of the non

unanimous jury verdict scheme in Louisiana. See

Lee v. Louisiana, no. 07-1523, Amicus of LACDL at

6 (noting that “we can appeal to the conscience of

the nation, both judicial and legislative and I don’t

believe that they will take the responsibility of

striking down the system which we have reared in

order to protect the purity of the ballot box and to

perpetuate the supremacy of the Anglo- Saxon race

in Louisiana.”’); Bowen v. Oregon, no. 08-1117

Amicus of LACDL at 10 (detailing same history)

hose earlier tilings are on file in this Court

and LACDL will not recount the entirety of that

historical analysis in this brief. but rather

concentrate on the ongoing pragmat

will

ic’ ¢ MmSeqguences

f he nile Se

QO tne non-unanimou rut in AuIsIaANA

courtroom

Ultimately, amici respectfully sugyests that

this Court consider, alongside Alonso Herrera

petition, the petition for certiorarn) now before thi

Court and filed in Barbour v. Loutstana (10-689)

involving a Louisiana defendant convicted by a

non-unanimous jury. Cases arising from J|ouisiana

quarely present the troubling historical racial

origins of non-unanimity* and the impact of the

non-unanimous jury scheme in silencing minorit,

participation

( I Hunter { { nderwood 1 / | . ee Lene tl le > t Without

deqding whether § 182 would he valid if enacted today

without any impermissible motivation, we mnply observe

that its original enactment was motivated by

discriminate against black

a ae sire LO

on account of race and the section

continues to this day to have that effect A hn

equ i] protection under Arlington He gyri

f\ ul it violate

SUMMARY OF THE ARGUMENT

This Court should grant certiorari here or in

Barbour v. Louisiana, 10-689 (response due

December 27, 2010)? and overrule Apodaca ov.

Oregon, 406 U.S. 404 (1972).

As noted in the petitions for certiorari in

Herrera and Barbour, the jurisprudential approach

taken by the Apodaca plurality is out of step with

this Court’s Sixth Amendment jurisprudence:

Apodaca focused on the functional role of the jury

in contemporary society, while this Court has made

clear that Sixth Amendment questions properly

turn on the Framers’ understanding of the

applicable rights.

Amici, focus on a separate reason to overrule

Apodaca The Louisiana experience with non-

unanimous juries highlights deep flaws in

Apodaca’s fractured reasoning. Apodaca was

wrongly decided because the plurality’s central

assumption — that no functional difference exists

between juries operating under a_ unanimity

requirement and those operating under a _ 10-2

3 Amici is informed that several other organizations including

the Charles Hamilton Houston Institute, and the Nattonal

Association of Criminal Defense Lawyers intend to file

separate amicus briefs in that case.

decision rule — is simply incorrect, for at least two

reasons.

First: Since Apodaca was handed down,

nearly four decades of empirical research on jury

decision-making has demonstrated that unanimous

juries are more careful, more thorough, and more

reliable, returning verdicts that are more aligned

with what experienced observers of the criminal

justice system view to be the correct verdict.

Louisiana’s experiment with non-unanimous juries

has resulted in a significant number of known

wrongful convictions, and continues to allow an

untold number of injustices.

Second: Recent scholarship shows that one

of the original purposes of non-unanimous jury

schemes was to silence minority voices, and

suggests that those schemes do exactly what they

were intended to do. Louisiana’s non-unanimous

jury provision was born of an explicitly racist desire

to cleanse the criminal justice system of African-

American influence. ‘The Louisiana experience

shows that the non-unanimous jury scheme

actually does serve to aid in the exclusion of

minorities from juries — not least because non-

unanimous juries allow prosecutors to better

conceal the racial use of peremptory strikes — and

contributes to silencing the voices of minorities on

juries. Eliminating the traditional unanimity

requirement marginalizes the viewpoints of

~

dissenting jurors because jurors in the majority

refuse to deliberate further once the threshold has

been reached. This effect can be particularly

troubling when those holding minority viewpoints

are historic victims of discrimination, including

women, people of color and religious minorities.

REASONS FOR GRANTING THE WRIT

Since this Court denied certiorari in Lee v.

Louisiana, 07-1523 (2008) (raising the problem of

Louisiana’s non-unanimous jury scheme) there

have been’ two © significant and _ relevant

developments in the case-law, both of which

militate in favor of granting certiorari to revisit,

and reverse, Apodaca. First, this Court’s decision

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

(2010) strongly suggests that the “watered down”

incorporation embraced by Justice Powell’s

dispositive solo opinion in Apodaca flies in the face

of the constitutional tradition embodied in an

otherwise-unbroken chain of this Court’s opinions.

Id. at 3035 (embracing 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

encroachment.”’) (citation omitted).

Second, it has become clear that only

intervention by this Court will resolve the logjam of

lower court cases raising non-unanimous jury

claims.4 In State v. Bertrand, 2008-2214, 2008-

4 See State v. Lawrence, 2009-16387, p. 18 (La.App. 4 Cir.

08/25/2010); 2010 La. App. LEXIS 1188 at * 22 (rejecting

appellant’s challenge to his conviction at the hands of a non-

unanimous jury) (“Suffice it to say that intermediate appellate

2311 (La. 3/17/09); 6 So.38d 738, the Louisiana

Supreme Court ruled that Article 782 of the

Louisiana Code of Criminal Procedure, which

permits non-unanimous verdicts in certain felony

cases, remains constitutional pending further

action by this Court. The Louisiana Supreme Court

identified Apodaca as controlling precedent, and

emphasized that the task of reconsidering that

decision rests with this Court: “[W]Je are not

presumptuous enough to suppose, upon mere

speculation, that the United States Supreme

Court's still vahd determination that non-

unanimous 12 person jury’- verdicts’ are

judges, just like a trial judge, are not at lhberty to ignore the

controlling jurisprudence of superior courts’) (internal

quotation omitted); State v. Every, 2009-0721 (La.App. 4 Cir.

03/24/10); 35 So. 3d 410 (citing to Bertrand in rejecting non

unanimity challenge to non-unanimous verdict); State v.

Jones, 2009-2261 (La.App. 1 Cir. 05/07/10); 39 So. 3d 849

(same); State v. Moody, 2009-1394 (La.App. 4 Cir. 04/21/10);

38 So. 3d 451 (same); State v. Green, 2010-0008 (La.App. 4

Cir. 11/17/10); 2010 La. App. LEXIS 15938 (same); State v.

Samuels, 2010-0821 (La.App. 1 Cir. 10/29/10); 2010 La. App.

Unpub. LEXIS 584 (same); State v. Boudreaux, 2008-1504

(La.App. 4 Cir. 09/29/10); 2010 La. App. LEXIS 1314 (same);

State v. Blanchard, 2010-0014 (La.App. 1 Cir. 07/08/10); 41

So. 3d 662 (same); State v. Martin, 2009-1368 (La.App. 1 Cir.

10/23/09); 25 So. 3d 250 (same); State v. Taylor, 2009-0041

(La.App. 4 Cir. 09/04/09); 21 So. 3d 421 (same); State v. Smith,

09-100 (La.App. 5 Cir. 08/25/09); 20 So. 3d 501 (same); State v

Raymond, 08-1204 (La.App. 5 Cir. 04/28/09); 13 So. 3d 577

(same).

constitutional may someday be overturned....” 08-

2214, p. 8; 6 So.3d at 743.

Following Bertrand, Louisiana’s appellate

courts have repeatedly declined to _ subject

Louisiana’s non-unanimous jury scheme to renewed

scrutiny, despite mounting evidence that Apodaca’s

foundational assumptions were flawed, and despite

the emergence of a troubling historical record

showing that Louisiana’s non-unanimous_ jury

scheme was born of a post-reconstruction desire to

keen African-Americans out of the jury box. See,

e.g., State v. Thomas, 10-220, pp. 12-13 (La.App. 5

q

Cir. 11/09/10); 2010 La. App. LEXIS 1549 at* 18

5 Nevertheless, some Louisiana judges have evidently chafed

at their inability to consider arguments and evidence that

were not set before this Court in Apodaca. See State v.

Williams, 2009-0602 (La.App. 4 Cir. 01/27/10); 26 So. 3d 321

(Belsome, J., concurring in a judgment that denied, inter alia,

appellant’s non-unanimous jury claim) (“I write separately to

comment regarding the historical significance of unanimous

jury verdicts. Historically, a defendant could not be convicted

unless the jury verdict was unanimous.... Therefore, until a

further directive is given by the U.S. Supreme Court or the

Louisiana Supreme Court, we are bound to follow State v

Bertrand....”); State v. Barbour, 2009-1258, p. 17 (La.App. 4

Cir. 03/24/10); 35 So. 3d 1142, 1152 (Belsome, J., concurring

in an affirmation of a conviction stemming from a non-

unanimous verdict) (“I write separately to acknowledge that

historically, a defendant could not be convicted unless the jury

verdict was unanimous.”).

1]

(rejecting non-unanimous jury claim) (“The trial

court did not err in denying relator’s motion to

quash, since a trial judge is not at liberty to ignore

the controlling jurisprudence of superior courts. See

Bertrand, supra. Similarly, as an intermediate

appellate court, this Court is obliged to follow the

precedent established by the Louisiana Supreme

Court.”).6 Further developments in Louisiana are

unlikely absent action by this Court.

6 Some of the non-unanimous jury claims presented to, and

rejected by, Louisiana’s appellate courts in the past two years

have arisen in postures that point up some of the

constitutionally troubling aspects of the non-unanimous jury.

See, e.g., State v. McKnight, 09-1186, p.6 (La.App. 4 Cir.

04/14/10); 37 So. 3d 1050, 1053 (reversing conviction handed

down by non-unanimous jury for evidentiary insufficiency,

and thus pretermitting discussion of appellant’s non-

unanimous jury claim) (“Defendant argues that his conviction

by a non-unanimous jury is unconstitutional, in violation of

the Sixth Amendment of the U.S. Constitution. Because we

have reversed his conviction and sentence on other grounds,

we pretermit discussion of ‘his issue. We note, though, that

this issue was recently addressed by this court and found to

be without merit.”); State v. Jones, 2009-0751 (La.App. 1 Cir.

10/23/09); 29 So. 3d 533 (reversing conviction of African-

American defendant after 11-1 verdict of guilt, handed down

by all-white jury, where trial court failed to investigate

allegation that juror had been using racial slurs in jury room,

but nevertheless considering — and discounting — appellant's

non-unanimous jury claim); State v. Blow, 45,415, p. 29

(La.App. 2 Cir. 08/11/10); 2010 La. App. LEXIS 1148 at *44

(“Mrs. Blow somehow conjures up a structural defect here, in

This Court should take action in conjunction

with the petitioner's application in Barbour uv.

Louisiana, (10-689) (response due December 27,

2010). As this Court acknowledged in McDonald,

Apodaca is a jurisprudential anomaly: its holding is

foreign to the Framers’ understanding of the jury

trial; it represent a solitary and unjustifiable

exception to the rule that an incorporated right

carries the same protections against state action as

against federal action; it functions to the detriment

of careful deliberation and reliable results; and its

operation muzzles disenfranchised and

marginalized communities.

that the jury reached a 10-2 verdict in less than two hours

She views this split verdict and its alacrity as reflecting less

than ample consideration of the case.”)

BOTH THE EXPERIENCE OF LOUISIANA

PRACTITIONERS AND THIRTY-FIVE

YEARS OF EMPIRICAL RESEARCH CAST

GRAVE DOUBT ON THE APODACA

COURT’S ASSUMPTION THAT THERE IS

NO SIGNIFICANT DIFFERENCE

BETWEEN THE DELIBERATIVE

PROCESS AND THE SUBSTANTIVE

RESULTS IN UNANIMOUS AND NON-

UNANIMOUS JURIES

A. Empirical Research Has Shown

that Unanimous Juries Are More Thorough,

Deliberate More Carefully, and Arrive at

More Reliable Results than Non-unanimous

Juries

With admittedly httle empirical’ or

evidentiary support other than its own hunches

and assumptions, the majority in Johnson ov.

Louisiana, 406 U.S. 356, 360-61 (1972), rejected

any notion that upon reaching the quorum

necessary to convict, the majority jurors might

simply short-circuit deliberations and ignore the

reasonable doubts of their colleagues. The Johnson

Court concluded that before it would alter its own

perceptions of jury behavior and overturn a

legislative judgment that unanimity is not essential

to reasoned jury verdicts, “we must have some

basis for doing so other than unsupported

assumptions.” Jd. at 361-62. But see id. at 389-90

(Douglas, J., dissenting) (“I fail to understand why

the Court should lift from the States the burden of

justifying so radical a departure from an accepted

and applauded tradition and instead demand that

these defendants document with empirical evidence

what has always been thought to be too obvious for

further study.”).

But subsequent empirical research on jury

decision-making has consistently undermined the

view that non-unanimous juries can protect the

jury trial guarantee. The lack of a unanimity

requirement negatively affects a jury’s deliberative

process and the accuracy of its fact findings.

Empirical evidence shows unanimous juries

are more thorough and careful than _non-

unanimous juries. Mock juries required to reach

unanimity deliberated more thoroughly and

discussed the evidence as opposed to focusing

unduly on taking votes to reach the quorum. See

Reid Hastie, Steven D. Penrod & Nancy

Pennington, /nside the Jury 108 (1983); James H.

Davis, et al., The Decision Processes of 6- and 12-

Person Mock Juries Assigned Unanimous and Two.

Thirds Majority Rules, 32 J. Personality & soc.

Psychol. 1 (1975) (simulated juries deliberated

longer when they were required to reach a

unanimous verdict as opposed to when they had to

reach a two-thirds vote); Richard A. Primus, When

Democracy is Not Self-Government: Toward a

Defense of the Unanimity rule for Criminal Juries,

18 Cardozo L. Rev. 1417, 1445 (1997) (arguing that

the unanimity rule “forces decision makers to

continue their discussions past the point where a

less stringent decision rule would permit the

process to end.”), In contrast, studies have found

that “shorter deliberations lead to less accurate

judgments....[MJajority rule discourages

painstaking analyses of the evidence and steers

jurors toward swift judgments that too often are

erroneous or at least highly questionable.” Kim

Taylor-Thompson, umpty votes in Jury

Deliberations, 113 Harv. L. Rev. 1261, 1273 (2000).

Not only do unanimous jurors deliberate

longer and more thoroughly, but they are jess likely

to silence and marginalize minority views and

dissenting jurors. See Valerie P. Hans, The Power

of the Twelve: The Impact of Jury size and

Unanimity on Civil Jury Decision Making, 4 Del. L

Rev. 2, (2001) (when unanimity was not required,

dissenting jurors on mock juries participated less

and were viewed by majority jurors as_ less

persuasive); Shari Diamond, et al., Revisiting the

Unanimity Requirement: The Behavior of the Non

Unanimous Civil Jury, 100 Nw. U. L. Rev. 201

(2006) (when real juries were told that they need

not reach unanimity, they were less concerned

about deliberations, refused to consider the merits

of the minority view, were more likely to hold a

formal vote count within ten minute ol

beginning of deliberations and continued to

often until they reached the required majority

for a verdict)

Minally, unanimity rules can actually shape

a jurys verdict. Studies have shown how verdict

supported by a majority of the jurors at the start of

deliberations were different than the verdict

actually reached after a careful, thorough

deliberative process See Hastie, et al., supra, at 96

98; Valerie P. Hans et al., The Hung Jury: The

American Jurys Insights and Contemporary

Understanding, 39 Crim. L. Bull. 33, 47 (2003)

(finding that the defendant was _ ultimately

acquitted 12 percent of the time in a sample of

j | |

cases where the first ballot revealed a _ stron

majority in favor of conviction)

Jurors operating under a unanimity rul

report being more satisfied with their deliberation:

and more confident that they reached the correct

result, while non-unanimous juries report lowe)

ratings of the performance and decision processe

of the other jurors. Hastie el al., supra, at 76, 82

Diamond, et al., supra, at 205 Perhaps most

importantly, unanimity rules enhance the

perceived rehability and legitimacy of criminal!

verdicts. /d. at 222, 227 (citing research indicating

that “community residents viewed unanimou

procedures for arriving at jury verdicts in criminal

Case AS IO!

pro edures )

Bb Louisiana Lh xpe rLeriUce Ha Shown that

Non-unantimous Juries Present an

Unacceptable Risk of Rushed and Unreliabl

Decision-Making

The number of individuals in Loulsiana whi

have been exonerated after having been found

guilty by a non-unanimous jury lends support te

the empirical tudies suggesting that non

unanimous verdicts exacerbate the risk of wrongful

convictions. A study by the Innocence Project of

New Orleans (IPNQ) shows that 52.9% of then

chents who were wrongfully convicted § and

incarcerated for a non-capital offense vere

convicted by a non-unanimous jurv. IPNO ha

represented nine individuals in Louisiana who

were wrongfully convicted and lost their lberty

family, and livelihood despite the fact that ther

were jurors on their respective’ juri

reasonable doubt ther rut

As to date, IPNO has identified 17 non-capital

the person was wronglully convicted by a jury of 12 person

Juries in eight of those non capital Cast returned

unanimous verdict whereas nine jure returned a non

unanimous verdict IV?NQO has verified the unanimity/non

unanimity of the jury verdicts with the trial record in each of

the 17 cases but for two, Ricky Johnson as 0. 30-770

Sabine Parish ind Walle Jacl yy] isi } " VUZU

reasonable doubt ft those puro) were not

marginalized and silenced by the supermapority

these men may not have lost untoward number!

vears behind bars for crime they did not comm)

Glenn Davis, 92-4541, Jefferson Pansh

Larry Delmore, 92-4541, Jefferson Paris!

erence Meyers, 92-4541 Jefferson Parisi

Gene Bibbins,. 287-979, Kast Baton Rougs

Gerald Burge, 147-175, St. Tammany Paris!

Doug Dilosa, 87-105, Jefferson Parish

Travis Haves, 97-3780. Jefferson Parish

Rickey Johnson, 30-770, Sabine Paris}

Wilhe Jackson. ®7-O00205. Jefferson Pat I

W hile i OCIELY that value Bar rood

rycalyye

and freedom of every individual hould not

condemn a man for commission of a crime when

there reasonable doubt about hi uit Inoore

Winship, 397 U.S. 358, 363-64 (1970), men and

women in Orleans Parish are regularly condemned

LO prison at times for life without the possibility

of probation or parole - when at least two people on

their jury had gvrave doubts has to their yvuilt

Since danuary 1, 2010, public defenders at the

Orlean Pubhe Defende have tmned 69

seriou

felony tmal requiring the empanelling of a 12

19

person jury. Of those 69 trials, 51 returned a

verdict of guilty on at least one count or more.

Sixteen juries returned a unanimous verdict of

guilty whereas thirty-two® juries returned a non-

unanimous verdict of guilty. In other words, nearly

two thirds of the guilty verdicts were returned by

8 The jury was not polled in one case, State v. Joseph Hayes,

490-682, where the jury returned a responsive verdict of guilt,

and OPD does not have jury verdict information in two cases,

State v. Gerard Tillman, 484-033, and State v. Darius Adams,

458-193.

® This information has been gathered by OPD from its public

defenders. Non-unanimous verdicts from January 1, 2010 to

November 26, 2010 are as follows:: State v. Jamaal Tucker,

482-303; State v. Darryl Robinson, 489-040; State v. Jimil

Joyner, 468-443, State v. Kaleigh Smith, 475-055; State v.

David Bonds, 478-742; State v. Kenneth Braud, 480-782, State

v. Ortiz Jackson, 482-029; State v. Cleveland Moore, 483-891;

State v. Jimmy Warner, 484-126; State v. Brandon Ruffin,

486-244: State v. Dale Maes, 486-334; State v. Dexter

Montgomery, 487-738; State v. Gregory Vincent, 488-188; State

v. Tautus Smith, 488-202; State v. Terrell Holmes, 488-362;

State v. Wilford Roberts, 488-741; State v. James Davis, 489-

600; State v. George Lennis, 490-269; State v. Richmond

Smith, 491-314, State v. Clifford Pierce, 491-393; State v.

Corey Kelly, 491-474; State v. Ronnie Rollins, 491-630; State v.

Kerry Cureaux, 492-369; State v. Leroy Jackson, 492-704;

State v. Marcus Jackson, 492-950; State v. Wayne Wilson, 493-

006; State v. Bruce Sims, 493-278; State v. Toliver Johnson,

493-694; State v. Robert Hart, 493-808; State v. Leonard

Nellum, 493-936; State v. Verchaun Simms, 494-239; State v.

Charles Harris, 496-276.

non-unanimous juries. Simply put, on a regular

basis men and women in Orleans Parish are being

deprived of their liberty “when doubts of a single

juror [is] evidence that the government has failed

to carry its burden of proving guilt beyond a

reasonable doubt.” Apodaca, 406 U.S. at 403

(Brennan, J., dissenting).

Such a high percentage of juries returning

non-unanimous verdicts likely means that these

juries ceased deliberations when the required

quorum of ten was reached. Focusing on reaching a

statutorily mandated verdict as opposed _ to

carefully and thoughtfully sifting through all of the

evidence results in truncated deliberations leading

to erroneous or highly questionable verdicts.

Il. LOUISIANA’S NON-UNANIMOUS

JURIES, WHICH EMERGE FROM A

TROUBLINGLY RACIST HISTORY,

CONTINUE TO HAVE THE EFFECT OF

EXCLUDING, MARGINALIZING, AND

SILENCING THE VOICES OF RACIAL

AND ETHNIC MINORITIES AND

WOMEN

Louisiana’s majority verdict system was first

introduced in the state’s 1898 Constitution, as part

of a raft of measures specifically designed to

“establish the supremacy of the white race.”!° Most

of those measures have since been abandoned or

struck down. However, the majority verdict system

continues to undermine the participation of African

Americans and other minorities in the criminal

justice system and to tarnish the legitimacy of jury

verdicts.

The pernicious effect of non-unanimous jury

verdicts amphifies and is itself exacerbated by the

racially-discriminatory use of peremptory

challenges. In Louisiana and Oregon, prosecutors

can mask discriminatory intent by accepting one or

two minority jurors in the knowledge that minority

votes can be marginalized by the majority verdict

scheme. Discriminatory use of peremptory

challenges can more easily ensure that minority

jurors are effectively silenced in a jurisdiction

where prosecutors need only ten votes to convict.

As the drafters of Louisiana’s racist 1898

Constitution were no doubt aware, where a group

10 From its creation, the state of Louisiana provided for the

common law right to trial by jury, including unanimity in jury

verdicts. By the Act of 1805, the Territory of Orleans adopted

the forms and procedures of the common law of England in its

criminal proceedings, including “the method of trials.” Act of

1805, § 33. See generally A. Voorhies, A Treatise on the

Criminal Jurisprudence of Louisiana, Bloomfield & Steel

(1860), pp.3-10.

forming a majority in the community can elect the

District Attorney and the judge and then form a

majority quorum on the jury, the jury no longer

operates effectively as a check on state power and a

guarantor of the rights of minorities.

A. Louisiana’s Majority Verdict

System Was Introduced in 1898 by a

Constitution Explicitly Designed to

Disenfranchise and Silence the African-

American Population

Louisiana’s 1898 Constitution, lhke the

Alabama Constitution of 1901 examined by this

Court in Hunter v. Underwood, 471 U.S. 222

(1985), “was part of a movement that swept the

post-Reconstruction South to disenfranchise

blacks.” Jd. at 229.

It was this 1898 Convention that for the first

time broke with the Common Law tradition and

encoded a rule allowing verdicts by a 9-3 majority.

At the same time, the Convention further eroded

the jury trial guarantee’ by _— eliminating

misdemeanor juries and reducing jury sizes for

lesser felonies. The proponents of those rules

sometimes tried to pass them off as cost-saving

devices, but commentators have directly linked the

diminution of the jury trial right to the

Convention’s larger effort “to consolidate

Democratic power in the hands of the ‘right people,’

thereby bypassing the poorer sorts, just as the

suffrage provision did.” W. Billings & E. Haas, In

Search of Fundamental Law: Louisiana's

Constitutions, 1812-1874, The Center for Louisiana

Studies (1998), pp. 93-109.

The opening address at the 1898 Louisiana

Constitutional Convention made clear that the

point was to limit African-American participation

in the democratic process and to “perpetuate the

supremacy of the Anglo-Saxon race in Louisiana.”

Official Journal of the Proceedings of the

Constitutional Convention of the State of

Louisiana, 8-9 (1898) [hereinafter “Journal”.

Closing the Convention, Hon. Thomas J. Semmes

celebrated the putatively successful “mission” of the

delegates “to establish the supremacy of the white

race in this state.” Jd. at 374.

As noted supra, this sordid history is laid out

in greater detail, and brought up to date, in

briefing filed by amicus LACDL in Lee v. Louisiana

and Bowen v. Oregon. ‘The issue is squarely

presented in the petition for certiorari in Barbour v.

Louisiana (10-689), now before this Court. Suffice

it to say, for these purposes, that Loutsiana’s

provision for majority verdicts appears to have

originally been motivated by an explicitly racist

desire to dis-empower African-Americans. And, as

discussed infra, the non-unanimous jury scheme

continues to have the effect of silencing and

24

marginalizing African-American and other

minority voices.

B. Non-unanimous Jury Schemes

Silence and Marginalize the Voices of

African-Americans, Other Racial and Ethnic

Minorities, and Women

The system of majority verdicts in Louisiana

creates the inherent risk that the voices of African-

American jurors will not be respected, will not form

a meaningful part of the deliberations, and may

even be completely ignored. Majority verdicts

create an opportunity for other jurors to return the

verdict of their choosing while ignoring or

discounting the views of minority jurors. This

dilution of meaningful African-American

participation on juries is exponentially worsened

when combined with the discriminatory use of

peremptory challenges by prosecutors.

As the delegates at the 1898 Louisiana

Constitutional Convention understood,

discriminatory intent can be masked by accepting

one or two African-American jurors in the

knowledge that their vote will not be fully effective

in a system of majority verdicts. At the time it

passed the nonunanimity rule, the 1898

Convention had before it the “Statement of

Registered Voters 1897 and 1898” which is

contained in the Official Journal itself. See

Journal, supra, at inserted chart. The “Statement”

showed that African-Americans represented 14.7%

of all citizens registered to vote in Louisiana as of

January 1, 1898 (12,902 of 87,240). Id.

Proportionate representation on juries would have

seen an average of two black jurors per trial. The

selection of nine votes for a verdict served to

guarantee white majority control over jury verdicts

— black jurors could be ignored.

Within a system of majority verdicts it

becomes easier to conceal discriminatory intent in

the use of peremptory challenges. At the same

time, a majority verdict system makes the impact

of race-based peremptory challenges more

dramatic. Where a_ prosecutor minded_ to

discriminate knows that he or she need only secure

ten out of twelve votes to obtain a conviction, there

is an opportunity to include one or two token

African-American jurors. This strategy was even

observed by the Louisiana Supreme Court in the

case of a particularly obvious Batson violation:

Because only ten votes were needed to

convict defendant of armed robbery, the

prosecutor could have assumed, contrary to

Batson’s admonition that it was

unacceptable to do so, that all black jurors

would vote on the basis of racial bias and

then purposefully discriminated by limiting

the number of blacks on the jury to two...

This pattern of striking all black jurors

(except two) continued in the face of

mounting pressure by the trial court to

select a Jury more representative of the

black population of the parish.

State v. Collier, 553 So. 2d 815, 819-20 & 823 (La.

1989) (footnotes omitted). See also State v.

Cheatteam, 07-272, p. 10 (La.App. 5 Cir. 05/27/08);

986 So. 2d 738, 745 (“[Defense counsel] pointed out

that it appeared the prosecutor was attempting to

ensure that only two African-Americans would

serve on the jury. And in order to convict, the

prosecutor needed only 10 votes.”).!!

The concern over the negative feedback-loop

between non-unanimous verdicts and

discriminatory use of peremptory. strikes in

Louisiana is not merely academic. In a large scale

study of the pattern of prosecution peremptory

challenges in Louisiana’s Jefferson Parish — which

today makes up the largest judicial district in the

state — it has been shown that _ prosecutors

1! The potential for de facto silencing of minority viewpoints is

not limited to Louisiana. Because white/non-Hispanic

citizens comprise 80.5% of Oregon’s population, the average

jury will consist of two or fewer minority jurors. Thus, under

a 10-2 decision rule, the voices of ethnic and racial minority

jurors can be safely ignored.

peremptorily challenged African Americans at more

than three times the rate at which they challenged

non-African Americans.!?

In 2003, Professor Joel Devine, of Tulane

University’s Center for Applied Science Research,

analyzed data gathered from 390 trials involving

over 10,000 prospective jurors in Jefferson Parish.

Professor Devine’s analysis showed that

prosecutors used peremptory strikes to remove 55%

of otherwise-eligible African-American prospective

jurors, but only 16% of non-African American jurors

in the same position. Jd.

Researchers then analyzed the _ actual

representation of African-Americans on Jefferson

Parish juries, using the same dataset. Using a

statistical tool known as a Poisson Distribution,

researchers estimated the expected distribution of

African-Americans on juries in a jurisdiction that is

23% African American, if the results were not

racially skewed?3:

12 Blackstrikes, A Study of the Racially Disparate Use of

Peremptory Challenges By the Jefferson Parish District

Attorney's Office, A Report of the Louisiana Crisis Assistance

Center, (Sept. 2003), available at www.blackstrikes.com (last

visited November 28, 2010).

13 The 2000 U.S. Census recorded the African-American

population at 22.9% of the Parish. Profile of General

# of African- | What It | What

Americans Should Be

on Jury

0

These results suggest that as a result of the

extensive use of prosecution peremptory challenges

against African-Americans, the number of all white

juries was more than three times what might have

been expected in a jurisdiction composed of 23%

African-Americans. And, where in race-neutral

process 47% of juries might have been expected to

have two or fewer African-Americans, fully 80%

Jefferson Parish juries actually had two or fewer

African-Americans that is, so few African-

Americans that their voices could effectively be

discounted by the white majority.

Demographic Characteristics 2000, U. S. Census Bureau,

available at

http://factfinder.census.gov/servlet/QTTable?_bm=n&_lang=e

n&qr_name=DEC_2000_SF1_U_PP1&ds_name=DEC_2000_S

Fl U&geo_id=05000US22051 (last visited 11/28/10).

The combined effect of racially disparate use

of prosecution peremptory strikes and majority

verdicts is dramatic. In a system of unanimous

verdicts and even handed use of peremptories,

there should be only 6% of juries in Jefferson

Parish in which there is no guaranteed African-

American voice; that is, those cases where an all

white jury is empanelled. However, given the

reality of tury selection methods and the use of

majority verdicts, fully 80% of juries in Jefferson

Parish have no guaranteed African-American voice

Justice Potter Stewart warned _ that

Apodaca’s rule might give rise to just such a

situation, in which “[ten] jurors can simply ignore

the views of their fellow panel members of a

different race or class.” Johnson, 406 U.S. at 397

(Stewart, J., dissenting); Dennis J. Devine et al.,

Jury Decision making: 45 Years of Empirical

Research on Deliberating Groups, 7 Psychol. Pub.

Pol'y & L. 622, 669 (2001) (“Unanimous verdicts

protect jury representative-ness - each point of view

must be considered and all jurors persuaded.”); id.

(“minority jurors participate more actively when

decisions must be unanimous.”). Amicus is not

suggesting that all juries split on racial lines or all

jurors refuse to listen to or share the views of those

of other races. However, these figures dramatically

illustrate the inherent potential of a system of

majority verdicts to undermine the benefits of full

participation and legitimacy offered by unanimous

verdicts, particularly when combined with

widespread abuse of peremptory challeng:

The plurality in Apodaca was unwilling to

accept that members of a minority group may be

inappropriately silenced or disproportionately

excluded in deliberations directed towards a

majority verdict, rather than unanimity. But here

too, it appears that facts on the ground have

thrown into doubt the premises on which Apodaca's

plurality based its decision. This Court has made

significant efforts in recent years to ensure that

jurors are not excluded from jury participation on

the basis of their race or gender. J./.B. v. Ala. ea

rel. T.B., 511 U.S. 127 (1994); Miller-El v. Dretke,

'4 It must be noted, too, that even if minorities hold more than

two spots on any given jury, minority race and female gender

are negatively correlated with juror persuasiveness and

deliberation performance. See Hastie et al., supra, at 149

(finding that to the extent the juror has characteristics or

experiences that are negatively linked to deliberation

performance and juror persuasiveness, the more likely the

juror is to be a holdout). See also Kim ‘laylor-Thompson,

Empty Votes In Jury Deliberations, 113 Harv. L. Rev. 1261,

1298-99 (Apr. 2000) (citing studies observing that women

speak less than do men during deliberations, and that men

often interrupted the women and ignored their arguments)

This means that even when minorities sit on a jury, there is

an increased likelihood that women and people of color may

end up being outvoted by the majority of a non-unanimou

jury

544 U.S. 660 (2005); Snyder v. Louisiana, 128 S. Ct

1203 (2008) But the important constitutional

principles embodied in those cases are undermined

when the views of women and people of are

marginalized by non-unanimous jurie: The jur'

trial mght found in the Sixth Amendment

designed to protect the individual from. th

oppression by the government Duncan

Louisiana, 391 U.S. 145, 155 (1968) Where a

majority population can elect prosecutors and

judges and then form a veto-prool quorum on 4

jury, the jury no longer functions as the “circuit

breaker in the State’s machinery f justice

Blakely v. Washington, 542 U.S. 296, 306 (2004)

CONCLUSION

Non-unanimous criminal verdicts in Orego)

and Louisiana continue to undermine a critica!

portion of the Sixth Amendment's jury trial

ruarantee Amict respectfully suggest that th

Court consider this case along with the petition for

certiorart now before the Court and filed in Barbour

v. Louisiana (10-689), to grant certiorari, and

reverse Apodaca with the benefit of full briefing on

the Fourteenth Amendment issues raised by th

troubling racist history behind Loulsiana

unanimous jury scheme

BiN COOH!

636 BARONNI

NEW ORLEAN

904-529-5909

rene Vtheyu LIC