# Amicus Curiae Brief — Herrera v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2461%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1135

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2461%3A08. Public record. Not legal advice.