Opposition Brief — Barbour v. Louisiana

No. 10-689 Sa ik peek eee

IN THE

Supreme Court of the Anited States

TROY BARBOUR,

Petitioner,

ae

STATE OF LOUISIANA,

Respondent.

On Petitiou tor a Writ of Certiorari to the

Louisiana Fourth Circuit Court of Appeal

BRIEF IN OPPOSITION

LEON A. CANNIZZARO, JR.

Orleans Parish District Attorney

DONNA RAU ANDRIEU

Counsel of Record

Chief of Appeals

DONALD G. CASSELS, III

Law Clerk

ORLEANS PARISH DISTRICT

ATTORNEY'S OFFICE

619 South White Street

New Orleans, LA 70119

(504) 822-2414

dandrieu@orleansda.com

Counsel for Respondent

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

QUESTION PRESENTED

Whether the Sixth Amendment right to jury tral,

as applied to the States through the Fourteenth

Amendment, prohibits a criminal conviction based on

a nonunanimous jury verdict.

TABLE OF CONTENTS

QUESTION PRESENTED........................ aihaianan

TABLE OF AUTHORITIES. ....................escccscsssees

STATEMENT OF THE CASE. ........................06+-

REASONS FOR DENYING THE PETITION ....

I.

il.

THIS COURT'S DECISION IN APO-

DACA V. OREGON IS ENTITLED TO

UE RPM IGE sax esansseveresssrvesecsssenvsszsvess)

NEITHER PETITIONER NOR HIS

AMICI CURIAE HAVE OFFERED THE

SPECIAL JUSTIFICATION NECES-

SARY TO OVERTURN APODACA V.

oar ia ance auth elsnnadsseacadenwereisdksersiens

A. The Sixth Amendment Does Not Re-

quire Unanimous Verdicts in Crim-

SEI A cc caducgcraarccgvassssepesseetevssenesea

1. Constitutional History Does Not

Support a Reading Requiring

RE os osc olis i cadcasievasias aa

2. The Function of the Jury Does

Not Support a Reading Requiring

RII ccs iinc-nusunatai on ndesaeneenavess

3. This Court’s Recent Jurispru-

dence Does Not Support a Read-

ing Requiring Unanimity...............

4. Empirical Evidence Does Not

Support a Reading Requiring

RINONI <cc csi var csdpaccecasstesiepeived sess

(11)

bo

bo

iV

TABLE OF CONTENTS-——Continued

a. Arguments Offered by Peti-

tioner and His Amici Curiae ....

b. Arguments Not Offered by

Petitioner and his Amici

RA ARATE ERE PARNER Ae

B. The Fourteenth Amendment Does

Not Require Unanimous Criminal

I oe pig trac eahe Seats, WINS Shee

1. The History of Jury Practices in

the United States Does Not Sup-

port a Finding that Unanimous

Verdicts are a Fundamental

ENE TOROTODE ws ssicvaccics cessesccncissseves

2. Unanimity Is Not a Fundamental

Liberty Interest Because It Nei-

ther Augments Nor Diminishes

the Historical Purpose of the

CONCLUSION .......... eeci pea pbeeeeecutLaea sesaseenennedvens

Page

13

16

16

Vv

TABLE OF AUTHORITIES

CASES Page

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

Apprendi v. New Jersey, 530 U.S. 466

CED scxexcacssnededueclarsuareseceenenaeane 4, 20, 11, 12

Arizona v. Rumsey, 467 U.S. 203 (1984)...... 3

Blakely v. Washington, 542 U.S. 296

IP EIE D vacciccannsecenvexevevsanenedecrommiaioa caeecnaane 7, as i0

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

CID <cnsuskechs cnanacipcensvcasessasavaceeaneessaaasaaeinn 11,12

Crawford v. Washington, 541 U.S. 36

CI Tv ckcsiscinesssascsnciseseenncscee eee 7

Cunningham v. California, 549 U.S. 270

COI Ficcncionssercavaevcectaneuseee. cer rae 9,10

Dickerson v. United States, 530 US. 428

CB viii cacderaxcsinsenemau ss Oeste 3

Duncan v. Louisiana, 391 U.S. 145

CRIN vs viceccsudccccveaueeeieecnacs edie eee 7,17, 22

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

Giles v. California, 554 U.S. 353 (2008)...... 7

In re Oliver, 333 U.S. 257 (1948) ................. 17

In re Winship, 397 U.S. 358 (1970).............. 9,10

Johnson v. Louisiana, 406 U.S. 356 (1972). 10

Klopfer v. North Carolina, 386 U.S. 213

EE UUEE Pceccvcedsatdesradeverscckeuiaaaaa eee ee 17

Matthews v. Eldridge, 424 U.S. 319 (1976). 14

Mattox v. United States, 146 U.S. 140

UR Pisssiivcoccvtcecscies en xcnnieseate ene eae 13

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

3020 (2010)....... Gwhepeetaeelartaree ane 4,11, 12,13

Michael H. v. Gerald D., 491 U.S. 110

CR cpnncisil cis vlcdeudecka saneuene saa 19

Parker v. Gladden, 385 U.S. 363 (1966) ...... 13

Payne v. Tennessee, 501 U.S. 808 (1996)..... 3

Pointer v. Texas, 380 U.S. 400 (1965)......... 17

vl

TABLE OF AUTHORITIES—Continued

Page

Remmer v. United States, 347 U.S. 227

lass sssenavaduaensevoncsvecesceess 13

Reno v. Flores, 507 U.S. 292 (1993)........... 19

Smith v. Phillips, 455 U.S. 209 (1982) ...... 13

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

Sullivan v. Louisiana, 508 U.S. 275 (1993). 9,10

Tanner v. United States, 483 U.S. 107

clas cass uspcavencavcosssecnesnen 14

Washington v. Glucksberg, 521 U.S. 702

eT sataucnseddudestcessonciccsescsesssséeeneses 18,19

Washington v. Texas, 388 U.S. 14 (1967) .... 17

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

Ne CPE. MOO CLOG TL )escesvccessccvsesscesvsseseccncess 2

Williams v. Florida, 399 U.S. 78 (1970)..... passim

United States v. Gonzalez-Lopez, 548 U.S.

essa ei cd cecedcescoceceessentvcssecescassess | 7

United States v. Intl Bus. Mach. Corp..,

517 U.S. 843 (1996).................

CONSTITUTION ”

U.S. Const. amend. VI..... | Leeeeee DQSSLM

U.S. Const. amend. XIV .......................00.008.. 11, 24

U.S. Const. amend. XIV, § 1, cl. 3... ...Dassim

STATUTES

La. Rev. Stat. 14:(27)30.1..

La. C. Cr. P. Art. 782(A)....

RULES

FED. R. OF EVID. 606(b)... 14

Vl)

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

1 ANNALS OF CONG. 435 (1789)..............0.0005.

Dennis J. Devine, et al., Jury Decision

Making: 45 Years of Empirical Research

in Deliberating Croups, 7 PSYCHOL. PUB

Ps Be Bis, SN CE i Esococdccedsncavesedecssusovecess

Edward P. Schwartz & Warren F

Schwartz, Decisionmaking by Juries

Under Unanimity and Supermajority

Voting Rules, 80 GEO. L.J. 775 (1992).....

Harry Kalven, Jr. & Hans Zeisel, THE

AMERICAN JURY 488 (1966) ...............0..0....

Letter from James Madison to Edmund

Pendleton (Sept. 23, 1789), 5 WRITINGS

OF JAMES MADISON 424 (G. Hunt ed.,

\ | eee eakcdeiubvadbecastasdtasuéacaeueduansi

Michael J. Saks, What Do Jury Experi

ments Tell Us About How Juries (Should)

Make Decisions?, 6 S. CAL. INTERDISC.

L.J. 1 (1997)......... laetuaneuaagnccseuistaiuassanstari

Patrick Devlin, TRIAL By JURY 164 (1956) ..

Paul Samuel Reinsch, The English Com

mon Law in the Early American Colonies,

1 SELECT ESSAYS IN ANGLO-AMERICAN

LEGAL HISTORY 367 (1907) ....... ipaleavaieaee |

S. JOURNAL, lst Cong., lst Sess. 71 (Sept

4,1789)............ Schadedan aia ecient

5. JOURNAL, lst Cong., lst Sess. 77 (Sept

9 1789).. ean

Page

14

6

20

Vill

TABLE OF AUTHORITIES—Continued

Page

Shari Seidman Diamond, Mary B. Rose &

Beth Murphy, Revisiting the Unanimity

Requirement: The Behavior of the Non

unanimous Civil Jury, 100 Nw. VU. L

REV. 201 (2006)......... 7

Valerie P. Hans, The Power of the Twelve

The Impact of Jury Size and Unanimity,

4 DEL. L. REV. 2 (2001).

William Blackstone, Commentaries on the

Laws of England (1769)

IN THE

Supreme Court of the United States

No. 10-689

TROY BARBOUR.

Petitioner.

\

STATE OF LOUISIANA,

Respondent

On Petition for a Writ of Certiorari to the

Louisiana Fourth Circuit Court of Appeal

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The underlying facts involving petitioner’s crime

do not control this Court’s analysis of the constitu

tional question presented. Nevertheless, for the

Court’s convenience, respondent recites them in

brief

Petitioner was charged by the State of Louisiana

on June 15, 2006 with attempted second degree

murder, a violation of Louisiana Revised Statute

14:(27)30.1 He pleaded not guilty at his August 14,

2006 arraignment. Prior to tral, petitioner filed a

motion in the state district court seeking that court’s

declaration of Louisiana Code of Criminal Procedure

Article 782(A) as unconstitutional to the extent that

it allows for nonunanimous guilty verdicts in non

2

capital felony cases. Petitioner’s motion was denied.

On June 16-17, 2006, petitioner was tried by a

twelve-person jury and found guilty as charged by a

verdict of 10-2. On June 27, 2008, the State charged

petitioner as a fourth-felony habitual offender.

Petitioner filed a post-verdict motion in which he

re-urged his pre-trial motion. His motion was denied

and he was sentenced to forty-eight years and six

months at hard labor without benefit of parole,

probation, or suspension of sentence.

Petitioner appealed his conviction, which was

affirmed by the Louisiana Fourth Circuit Court of

Appeal. Petitioner sought discretionary review in

the Supreme Court of Louisiana, which summarily

denied his application for review.

REASONS FOR DENYING THE PETITION

Petitioner fails to advance any justification for

granting his petition for a writ of certiorari. The foun-

dation of petitioner’s request is the argument that

this Court’s decision in Apodaca v. Oregon, 406 U.S.

404 (1972), is flawed and must be overturned. For

the reasons discussed below, were this Court to grant

certiorari, the result mandated by this Court’s holding

in Apodaca would remain unaltered. It is therefore

unnecessary for this Court to grant the petition for a

writ of certiorari.

I. THIS COURT’S DECISION IN APODACA

V. OREGON IS ENTITLED TO STARE

DECISIS.

This Court has stated that “the doctrine of stare

decisis is of fundamental importance to the rule of

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

U.S. 468, 494 (1987). The fundamental importance of

3

the doctrine flows from the recognition that it

“promotes the evenhanded, predictable, and consis-

tent development of legal principles, fosters reliance

on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.”

United States v. Intl Bus. Mach. Corp., 517 U.S. 843,

856 (1996) (quoting Payne v. Tennessee, 501 U.S. 808,

827 (1996) (internal quotation marks omitted).

That being so, this Court has stated that it

“approach[es] the reconsideration of [its] decisions .

with the utmost caution.” State Oil Co. v. Khan, 522

U.S. 3, 20 (1997). “Even in constitutional cases, the

doctrine carries such persuasive force that [this Court

has] always required a departure from precedent to be

supported by some ‘special justification.” Dickerson v.

United States, 530 U.S. 428, 443 (2000) (quoting

United States v. Int'l Bus. Mach. Corp., 517 U.S. 843,

856 (1996). (quoting Payne v. Tennessee, 501 U.S.

808, 827 (1996))); see also Arizona v. Rumsey, 467 U.S.

203, 212 (1984).

Il. NEITHER PETITIONER NOR HIS AMICI

CURIAE HAVE OFFERED THE SPECIAL

JUSTIFICATION NECESSARY TO OVER-

TURN APODACA V. OREGON.

A. The Sixth Amendment Does Not

Require Unanimous Verdicts in Crimi-

nal Trials.

Petitioner contends that the Sixth Amendment to

the Constitution impliedly requires that the verdicts

of all criminal juries be unanimous. It does not. The

Sixth Amendment provides, in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

4

the crime shall have been committed, which

district shall have been previously ascertained by

law ..

U.S. CONST. amend. VI.

1. Constitutional History Does Not

Support a Reading Requiring

Unanimity.

This Court has twice recited the relevant history of

the drafting of the Sixth Amendment: first, in

Williams v. Flerida, 399 U.S. 78 (1970), and later in

Apodaca v. Orezon, 406 U.S. 404 (1972) (plurality

opinion). In Williams, this Court concluded that,

although twelve-member juries were the historical

standard at common law, the Sixth Amendment did

not require that the number of jurors be fixed at

twelve. 399 U.S. at 102-03. In Apodaca, the plural-

ity concluded that the Sixth Amendment 4 not

require unanimous verdicts. '

Petitioner contends that the Apodaca plurality’s

conclusion was incorrect because unanimous verdicts

' As this Court recently noted in a footnote to its decision in

McDonald v. City of Chicago, its ruling in Apodaca

was the result of an unusual division among the Justices... .

[Flour Justices took the view that the Sixth Amendment

does not require unanimous jury verdicts in either federal

or state criminal trials... . |Fjour other Justices took the

view that the Sixth Amendment requires unanimous jury

verdicts in federal and state criminal trials .. . . Justice

Powell’s concurrence in the judgment broke the tie, and he

concluded that the Sixth Amendment requires juror

unanimity in federal, but not state, cases.

130 S.Ct. 3020, 3035 (2010). The result is, therefore, that

defendants in state criminal proceedings, like the petitioner,

may constitutionally be either convicted or acquitted by a

nonunanimous verdict.

5

were the common law practice among the colonies at

the time the Sixth Amendment was ratified and must

therefore be assumed to have been preserved therein.

However, as this Court noted in Williams,

“constitutional history casts considerable doubt on

the easy assumption ... that if a given feature

existed in a jury at common law 'n 1789, then it was

necessarily preserved in the Constitution.” 399 US.

at 92-93.

That constitutional history, as detailed by this

Court in Williams, demonstrates that the Sixth

Areendment was the result of a contentious drafting

process, during which the language of the amend-

ment underwent considerable evolution. See id. at

94-97. The first draft of the language, as introduced

by James Madison in the House, read, in relevant

part:

The trial of all crimes . . . shall be by an impar-

tial jury of freeholders of the vicinage, with the

requisite of unanimity for conviction, of the right

of challenge, and other accustomed requisites... .

1 ANNALS OF CONG. 435 (1789). Although this draft

passed the House, it failed in the Senate and was

returned to the House considerably altered. S.

JOURNAL, Ist Cong., Ist Sess. 71 (Sept. 4, 1789). The

Senate Journal indicates that the clause requiring

unanimity was stricken. Jd. The Senate Journal also

indicates that a subsequent motion to restore the

words providing for “the requisite of unanimity for

conviction” failed to be adopted. S. JOURNAL,

1st Cong., lst Sess. 77 (Sept. 9, 1789). To resolve

the chambers’ differences, a conference committee

was formed. That committee refused to accept

not only the original House language but also

6

an alternate suggestion by the House conferees that

juries be defined as possessing “the accustomed

requisites.” Letter from James Madison to Edmund

Pendleton (Sept. 23, 1789), in 5 WRITINGS OF JAMES

MADISON 424 (G. Hunt ed., 1904). The draft that

ultimately emerged from the committee provided, in

relevant part, only for

the nght to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained by

law....

Williams v. Florida, 399 U.S. 78, 94 (1970). It is this

draft that was subsequently adopted as the Sixth

Amendment; notably absent from it is any reference

to unanimity. Thus, the foregoing history casts

considerable doubt on the argument that the Sixth

Amendment should be read to require that the

verdicts of all criminal juries be unanimous. See

Apodaca v. Oregon, 406 U.S. 404, 409-10 (1972).

2. The Function of the Jury Does

Not Support a Reading Requiring

Unanimity.

In an attempt to discredit the 4podaca plurality’s

analysis for its thoroughness, petitioner fixates on

the plurality’s assertion that its inquiry must focus

“upon the function served by the jury im contempo-

rary society.” 406 U.S. at 410 (citing Williams, 39%

U.S. at 99-100) (emphasis added). Petitioner argues

that the analysis prompted by that statement is

inherently flawed because it looks beyond the histo-

rical tradition of the common law at the time the Sixth

Amendment was ratified. To substantiate his argu-

ment, petitioner directs this Court’s attention to a

7

number of cases purporting to disapprove such an

analysis: Apprendi v. New Jersey, 530 U.S. 466

(2000); Crawford v. Washington, 541 U.S. 36 (2004);

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

Siates v. Gonzalez-Lopez, 548 U.S. 140 (2006); and

Giles v. California, 554 U.S. 353 (2008).

Petitioner’s argument is moot. Defining the func-

tion of the jury, the Apodaca piurality looked to this

Court’s prior jurisprudence:

As we said in Duncan, the purpose of trial by

jury is to prevent oppression by the Government

by providing a “safeguard against the corrupt

or overzealous prosecutor and against the

compliant, biased, or eccentric judge.” Duncan v.

Louisiana, 391 U.S. at 156. “Given this purpose,

the essential feature of a jury obviously lies in

the interposition between the accused and his

accuser of the commonsense judgment of a group

of laymen . . .” Williams v. Florida, supra, 399

U.S. at 100.

Apodaca, 406 U.S. at 410. The reasoning of this

Court’s prior decisions in Duncan and Williams

focused on the historical function of the jury. In

borrowing the definition as stated in those cases, the

Apodaca plurality implicitly recognized that the func-

tion of the jury has not changed over the course of its

history. Accordingly, even if the cases cited by peti-

tioner prohibit any but an historical construction of

the Sixth Amendment, petitioner’s argument is moot

because the contemporary definition of the jury’s

function is identical to the historical definition

thereof.

8

Petitioner next argues that where a jury is not

required to return a unanimous verdict, the function

of the jury, as described by this Court, will be fru-

strated. However, as the Apodaca plurality noted,

this Court has also stated:

The performance of this role is not a function of

the particular number of the body that makes up

the jury. To be sure, the number should probably

be large enough to promote group deliberation,

free from outside attempts at intimidation, and

to provide a fair possibility for obtaining a repre-

sentative cross-section of the community.

Williams, 399 U.S. at 100; Apodaca, 406 U.S. at 410-

11. Inasmuch as Williams stands for the proposition

that the Constitution allows juries of less than

twelve, it is difficult to perceive a qualitative differ-

ence between a jury composed of ten returning a

unanimous verdict and a jury composed of twelve

returning a majority verdict of ten. In either case,

the defendant has had the benefit of a trial by a jury

of his peers, affording him the interposition of the

commonsense judgment of a group of laymen. More-

over, the burden placed upon the State in achieving

such a conviction is identical—it must convince ten

citizens of the accused’s guilt beyond a reasonable

doubt.

Notably, although the plurality opinion in Apodaca

limited its reference to Williams to only the foregoing

language, Williams went on to state:

We find little reason to think that these goals are

in any meaningful sense less likely to be

achieved when the jury numbers six, than when

it numbers 12—particularly if the requirement of

unanimity is retained. And, certainly the relia-

9

bility of the jury as a factfinder hardly seems

likely to be a function of its size.

399 U.S. at 101. At first glance, this language might

appear to lend support to an argument in favor of

unanimity. However, the Williams Court included

the following footnote:

We intimate no view whether or not the

requirement of unanimity is an indispensable

element of the Sixth Amendment jury tnial.

While much u: the above historical discussion

applies as well to the unanimity as to the 12-man

requirement, the former, unlike the latter, may

well serve an important role in the jury function,

for example, as a device for insuring that the

Government bear the heavier burden of proof.

Id. at 101 n.46.

Just prior to this Court’s decision in Williams, the

case of In re Winship was decided. In Jn re Winship,

this Court announced unequivocally:

Lest there remain any doubt about the constitu

tional stature of the reasonable-doubt standard,

we explicitly hold that the Due Process Clause

protects the accused against conviction except

upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which

he is charged. *

* Petitioner attempts to contradict the plain meaning of this

language by invoking this Court’s decision in Sullivan v

Louisiana, 508 U.S. 275 (1993), and Cunningham v. California,

549 U.S. 270 (2007). That attempt is misguided. Notwith-

standing petitioner's assertion to the contrary, Sullivan is as

unequivocal as re Winship as to the constitutional source of

the reasonable doubt standard:

10

In re Winship, 397 U.S. 358, 364 (1970). Taken

together, the two cases thus raised the question of

whether the Due Process Clause, and not the Sixth

Amendment, requires unanimity. That question was

answered with equal certainty by this Court in the

companion case to Apodaca, Johnson v. Louisiana,

406 U.S. 356 (1972). Noting that dissention in a

verdict betokens neither failure by the State to carry

its burden nor the unsoundness of the judgment of

the majority, this Court expressly held that the Due

Process Clause does not mandate unanimity of

verdicts. Johnson, 406 U.S. at 362-63. Accordingly,

even if there were a constitutional requirement of

unanimity, such requirement could only be found in

What the factfinder must determine to return a verdict

of guilty is prescribed by the Due Process Clause. The

prosecution bears the burden of proving all elements of the

offense charged and must persuade the factfinder “beyond

a reasonable doubt” of the facts necessary to establish

each of those elements. This beyond-a-reasonable-doubt

requirement, which was adhered to by virtually all

common-law jurisdictions, applies in state as well as

federal proceedings.

Sullivan, 508 U.S. at 277-78 (emphasis added). That this Court

noted that the Due Process Clause and the Sixth Amendment

are “interrelated” is by no means inconsistent with the assertion

in both Johnson and Sullivan that the requirement of proof

beyond a reasonable doubt emanates solely from the Due

Process Clause. Id. at 278.

Cunningham, too, fails to give petitioner the support he seeks.

That case addressed the constitutionality of a law permitting

judges to find facts by a preponderance of the evidence.

Cunningham, 549 U.S. at 274. In striking down the law, this

Court relied heavily on its prior ruling in Apprendi v. New

Jersey, in which it stated, “(This) Court has held that due

process requires that the jury find beyond a reasonable doubt

every fact necessary to constitute the crime.” 530 U.S. 466, 499-

500 (2000) (citing In re Winship, 397 U.S. 358, 364 (1970)).

1]

the Sixth Amendment—a reading which neither

history nor policy supports.

3. This Court’s Recent Jurisprudence

Does Not Support a Reading

Requiring Unanimity.

Petitioner argues that this Court’s recent jurispru-

dence offers support for the notion that, under the

common law at the time the Sixth Amendment was

ratified, juries were required to return unanimous

verdicts. Attempting to marshal support for this

argument, petitioner invokes the dicta of this Court,

warping the meaning of this Court’s statements by

stripping them of context and cloaking them in

textual artifice. In particular, Petitioner points to

statements made by this Court in Apprendi uv.

California, 530 U.S. 466 (2000); Blakely v. Washing-

ton, 542 U.S. 296 (2004); Booker v. United States, 543

U.S. 220 (2005); and McDonald v. City of Chicago,

130 S.Ct. 3020 (2010).°

Petitioner first directs this Court’s attention to its

quotation in Apprendi, Blakely, and Booker of

William Blackstone’s Commentary on the Laws of

England (1769): “(The truth of every accusation,

whether preferred in the shape of indictment,

information, or appeal, should afterwards’ be

confirmed by the unanimous suffrage of twelve of [the

defendant’s] equals and neighbours... .”* Apprendi,

* It is worth noting that only three of the cases cited by

petitioner—Apprend1, Blakely, and Booker—dealt with the Sixth

Amendment. McDonald, by contrast, dealt with the incorpo-

ration of the Second Amendment against the States through the

Due Process Clause of the Fourteenth Amendment.

‘In Blakely, this Court omitted the words “whether preferred

in the shape of indictment, information, or appeal.”

a

.

~

530 U.S. at 477; Blakely, 542 U.S. at 301; Booker, 543

U.S. at 239.

In both Apprendi and Booker, this Court italicized

the phrase “the truth of every accusation.” A review

of Apprendi, Blakely, and Booker reveals that the

intended focus of those cases was to clarify (1) that

the Sixth Amendment requires all facts tending to

influence the sentence imposed on a defendant be

found solely by a jury and (2) that the Due Process

Clause requires that all facts tending to influence the

sentence imposed on a defendant be found beyond a

reasonable doubt. In none of those cases did this

Court purport to determine whether juries were

required, as a matter of constitutional] law, to return

unanimous verdicts.

Ignoring this focus, petitioner has chosen to italic

ize the word “unanimous,” the effect of which is to

draw the reader’s attention away from the emphasis

placed by this Court on the phrase “the truth of every

accusation” and toward a passing reference to

“unanimous suffrage,” thereby giving the reader a

false impression of the language’s intended purpose.

To suggest that this Court’s use of such language

signals its tacit approval of a rule requiring unanim

ity is utterly inconsistent with its context.

Petitioner next asserts that this Court “flatly

stated in McDonald that ‘the Sixth Amendment right

to trial by jury requires a unanimous jury verdict.”

What this Court actually stated in a footnote to its

decision in McDonald—which addressed incorpo

ration of the right to bear arms—was that “|[this]

Court has held that although the Sixth Amendment

right to trial by jury requires a unanimous jury

verdict in federal criminal trials, it does not require a

unanimous jury verdict in state criminal trials.”

13

McDonald, 130 8.Ct. at 3035 n.14 (citing Apodaca uv.

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

Accordingly, notwithstanding petitioner’s asser-

tions to the contrary, none of this Court’s recent juri-

sprudence supports his contention that the Sixth

Amendment requires unanimous verdicts.

4. Empirical Evidence Does _ Not

Support a Reading Requiring

Unanimity.

a. Arguments Offered by Petitioner

and His Amici Curiae.

Petitioner and his amici curiae argue, essentially,

that the thoroughness of jury deliberation suffers

where a unanimous verdict is not required. At-

tempting to support such an argument, they cite

“empirical evidence.” However, the fundamental and

fatal flaw in the argument is that it assumes that

there is a constitutional metric against which the

thoroughness of jury deliberation may be measured.

There is not.

Although this Court has had the occasion to

examine the deliberative process through a constitu-

tional lens, such cases have dealt exclusively with the

exertion of improper influence on the deliberative

process from sources external to the jury itself.

See, e.g., Smith v. Phillips, 455 U.S. 209 (1982) Guror

in criminal trial had submitted an application for

employment at the district attorney’s office); Parker

v. Gladden, 385 U.S. 363 (1966) (bailiff made com-

ments about defendant); Remmer v. United States,

347 U.S. 227 (1954) (bribe offered to juror); Mattox v.

United States, 146 U.S. 140 (1892) (newspaper article

read to jurors). This Court has never had the

occasion to examine the substance of deliberations

14

themselves to determine whether they were suffi-

ciently thorough to protect the constitutional rights of

a defendant. To some extent, this is necessarily so

because jurors are not permitted to testify as to the

substance of their deliberations. See Tanner v.

United States, 483 U.S. 107 (1987); FED. R. Evin.

606(b). Nevertheless, petitioner and his amici curiae

attempt to persuade this Court by reference to bare

statistics not only that there is a constitutional

standard for measuring the thoroughness of jury

deliberation but also that, in jurisdictions permitting

nonunanimous verdicts, such a practice will neces-

sarily fail of such a standard. The studies relied

upon by petitioner and his amici curiae do not

support such a conclusion.

Additionally, as this Court has noted, “bare statis-

tics rarely provide a satisfactory measure of the fair

ness of a decisionmaking process.” Matthews uv.

Eldridge, 424 U.S. 319, 346 (1976). A number of the

studies heavily relied upon by petitioner and his

amici curiae were of either mock juries or civil juries.

The deliberations of such juries cannot be said to be

representative of the deliberations of real juries

empanelled in real criminal trials, the potential

outcome of which may require the privation of the

liberty of a fellow citizen.

* See, e.g., Shari Seidman Diamond, Mary B. Rose & Beth

Murphy, Revisiting the Unanimity Requirement: The Behavior

of the Nonunanimous Civil Jury, 100 Nw. U. L. REV. 201 (2006);

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

Size and Unanimity, 4 DEL. L. REV. 2 (2001); Michael J. Saks,

What Do Jury Experiments Tell Us About How Juries (Should)

Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1 (1997); Edward P

Schwartz & Warren F. Schwartz, Decisionmaking by Juries Under

Unanimity and Supermajority Voting Rules, 80 Gro. L.J. 775

(1992)

15

Moreover, the proffered data do not present an

accurate picture uf the totality of the research. For

example, in a study cited repeatedly by both peti-

tioner and his amici curiae, it is noted that “|w]hen

the distribution of verdict preference was compared

with final verdicts .. . one of the most robust and

widely replicated findings in jury research [emerged]:

The verdict preferred by the majority of jurors on the

first ballot was the jury’s final verdict over 90% of the

. 6

time.”

Petitioner and his amici curiae also advance argu-

ments for which they offer no empirical support.

For example, in one section of its brief amicus

curiae discussing minority’ jurors, the American Bar

Association quotes the following passage from an

article published in Harvard Law Review: “[I)f—as is

often true—the views of jurors of color and female

jurors diverge from the mainstream, nonunanimous

decisionmaking rules can operate to eliminate the

voice of difference on the jury.” Neither the ABA’s

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

Empirical Research in Deliberating Groups, 7 PSYCHOL. PUB

POL’Y & L. 622, 623 (2001) (citing HARRY KALVEN, JR. & HANS

ZEISEL, THE AMERICAN JURY 488 (1966)). It is noteworthy that

petitioner, citing to this study, states that “10-2 ballots .. . result

in guilty verdicts in unanimity regimes only 64.7% of the time.”

Petitioner’s Brief at 35 (citing Devine, supra, at 692 tbl. 6).

’ Although the studies upon which the American Bar Asso

ciation relies refer almost exclusively to “minority” jurors in the

sense of that word connoting those holding dissenting views, the

ABA’s brief amicus curiae improperly conflates that meaning of

the word with its racial counterpart. See, e.g., Brief of the

American Bar Association as Amicus Curiae, p. 12 (“The ABA

concluded that ‘minority jurors participate more actively when

decisions must be unanimous.”).

16

amicus brief nor the original article cites any

authority for such an assertion.

b. Arguments Not Offered by Peti-

tioner and his Amici Curiae.

Worthy of note are the arguments left unmade by

petitioner and his amici curiae. First, neither peti-

tioner nor his amici curiae attempt to argue that

there is any correlation between nonunanimous

verdicts and wrongful convictions. Second, although

petitioner and his amicus curtae, the Houston Insti-

tute for Race and Justice, imply that Louisiana’s

practice of allowing nonunanimous verdicts is a

vestige of the State’s regrettable history on the issue

of race, neither petitioner nor his amici curiae

attempt to argue that there is any correlation

between nonunanimous verdicts and the race of

defendants so convicted. Finally, neither petitioner

nor his amici curiae attempt to argue that there is

any correlation between nonunanimous verdicts and

the gender of defendants so convicted. These argu-

ments are not offered by petitioner and his azmnici

curlae because there is no support for them in the

scientific literature.

In sum, the empirical evidence that petitioner and

his amici curiae rely upon falls far short of raising

the special justification necessary for overturning the

settled holding of this Court’s decision in Apodaca v.

Oregon.

B. The Fourteenth Amendment Does Not

Require Unanimous Criminal Verdicts.

Petitioner contends that if, as he also contends, the

Sixth Amendment requires federal] juries to return

unanimous verdicts, the Due Process Clause of the

17

Fourteenth Amendment necessarily mandates that

such requirement be incorporated against the States.

Such a contention proceeds from a misapprehension

of this Court’s approach to the Incorporation Doctrine.

Mncapsulated within the first eight amendments are

manifold “liberty interests.” This Court has taken a

deliberate and individualistic approach to incorpo-

ration of liberty interests, particularly where they

have emanated from the Sixth Amendment. See, e.g.,

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

jury in criminal cases); Washington v. Texas, 388 U.S.

14 (1967) (compulsory process); Alopfer vu. North

Carolina, 386 U.S. 213 (1967) (speedy trial); Pointer

v. Texas, 380 U.S. 400 (1965) (mght to confront

adverse witness); Gideon v. Wainwright, 372 U.S. 335

(1963) (assistance of counsel); Jn re Oliver, 333 U.S.

257 (1948) (right to a public trial).

In determining the manner and extent to which

federally guaranteed liberty interests are incorpo-

rated against the States, this Court has expressed

circumspection:

[Wje have always been reluctant to expand

the concept of substantive due process because

guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended. By

extending constitutional protection to an

asserted right or liberty interest, we, to a great

extent, place the matter outside the arena of

public debate and legislative action. We must

therefore exercise the utmost care whenever we

are asked to break new ground in this field, lest

the liberty protected by the Due Process Clause

be subtly transformed into the policy preferences

of the Members of this Court... .

18

Washington v. Glucksberg, 521 U.S. 702, 720-21

(1997) (internal citations and quotation marks

omitted). With such circumspection as its guide, this

Court has also articulated a methodology for deter-

mining whether a liberty interest guaranteed by the

federal Constitution is so fundamental as to merit

incorporation against the States:

Our established method of substantive-due-

process analysis has two primary features: First,

we have regularly observed that the Due Process

Clause specially protects those fundamental

rights and liberties which are, objectively,

“deeply rooted in this Nation’s history and tradi-

tion,” [Moore v. East Cleveland] at 503 (plurality

opinion); Snyder v. Massachusetts, 291 U.S. 97,

105, (1934) (“so rooted in the traditions and

conscience of our people as to be ranked as

fundamental”), and “implicit in the concept of

ordered lberty,” such that “neither liberty nor

justice would exist if they were sacrificed,” Palko

v. Connecticut, 302 U.S. 319, 325, 326 (1937).

Second, we have required in_ substantive-

due-process cases a “careful description” of the

asserted fundamental liberty interest. [Reno v.|

Flores, supra, at 302; Collins |v. Harker Heights],

supra, at 125; Cruzan |v. Director, Missouri

Department of Health|, supra, at 277-278. Our

Nation’s history, legal traditions, and practices

thus provide the crucial “guideposts for respon-

sible decisionmaking,” Collins, supra, at 125,

that direct and restrain our exposition of the Due

Process Clause.

19

Washington v. Glucksbergy, 521 U.S. 702, 720-21

(1997). Thus, to determine whether a federally guar-

anteed liberty interest is incorporated against the

States, it must be described, and then, so described,

it must be found to be “fundamental.”

This Court has spoken to the appropriate method

by which to describe a liberty interest for purposes of

this Due Process analysis. See, e.g., Michael H. v.

Gerald D., 491 U.S. 110, 126 n.6 (1989) (“We refer to

the most specific level at which a relevant tradition

protecting, or denying protection to, the asserted

right can be identified.”); Reno v. Flores, 507 U.S.

292, 302 (1993) (“Substantive due process’ analysis

must begin with a careful description of the asserted

right, for ‘[t}he doctrine of judicial self-restraint re-

quires us to exercise the utmost care whenever we

are asked to break new ground in this field.”); Wash-

ington v. Glucksberg, 521 U.S. 702, 703 (1997) (“[T]he

Court has required a ‘careful description’ of the

asserted fundamental liberty interest.”) In light of

this Court’s careful appreach to defining an asserted

liberty interest at its most specific level, the liberty

interest at stake in this case may thus be described

as the right to be convicted or acquitted solely by a

jury whose verdict is unanimous. Having so defined

the liberty interest, it remains to determine whether

that interest is so “fundamental” as to be “deeply

rooted in this Nation’s history and tradition and

implicit in the concept of ordered liberty such that

neither liberty nor justice would exist if they were

sacrificed.” Glucksberg, 521 U.S. at 721.

20)

1. The History of Jury Practices in the

United States Does Not Support a

Finding that Unanimous Verdicts

are a Fundamental Liberty Interest.

This Court has had the occasion both to review the

history of the Sixth Amendment and to interpret its

meaning through the lens of the historical common

law. See, e.g., Williams v. Florida, 399 U.S. 78

(1970). In Williams, this Court examined whether

the colonies had mechanically received the entirety of

English common law, noting:

“While [the Framers’] general legal conceptions

were conditioned by, and their terminology

derived from, the common law, the early colon-

ists were far from applying it as a_ technical

system, they often ignored it or denied its sub-

sidiary force, and they consciously departed from

many of its most essential principles.”

399 U.S. at 98 n.45 (quoting Paul Samuel Reinsch,

The English Common Law in the Early American

Colonies, in 1 SELECT ESSAYS IN ANGLO-AMERICAN

LEGAL HISTORY 367, 415 (1907)). The implication of

the foregoing assessment is that the colonies were

discriminating as to which of the various elements of

the English common law were to be received into the

American tradition. “With respect to the jury trial in

particular,” this Court continued:

[Wlhile most of the colonies adopted the institution

in its English form at an early date, more than

one appears to have accepted the institution at

various stages only with ‘various modifications.’

See [Paul Samuel Reinsch, The English Common

Law tin the Early American Colonies, in 1 SELECT

ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 367,

21

412 (1907)|. Thus Connecticut permitted major-

ity decision in case of continued failure to agree,

id., at 386... Pennsylvania permitted majority

verdicts and employed juries of six or seven, id.,

at 398, and the Carolinas discontinued the

unanimity requirement, 5 F. THORPE, FEDERAL

AND STATE CONSTITUTIONS 2781 (1909) (Art. 69,

‘Fundamental Constitutions of Carolina’). See

also [F. Heller, The Sixth Amendment 13-21

(1951)!.

Id. Although such facts were ancillary to this Court’s

ultimate holding in Williams, they are immediately

relevant to the question presented by this case. To

the extent that at various times four of the thirteen

original colonies affirmatively rejected the notion

that the common law required unanimity of verdicts,

it is difficult to perceive how such a requirement

could be said to have been fundamental in the

context of our Nation’s history and traditions. Accor-

dingly, because our history and tradition do not sup-

port a finding that the right asserted by petitioner is

fundamental, this Court’s Due Process jurisprudence

does not approve its incorporation against the States.

2. Unanimity Is Not a Fundamental

Liberty Interest Because It Neither

Augments Nor Diminishes the His-

torical Purpose of the Jury.

In determining whether the right advocated by

petitioner is fundamental, it is also instructive to

consider the historical purpose of the jury itself.

That purpose was accurately described by the

plurality in Apodaca v. Oregon:

[T]he purpose of trial by jury is to prevent

oppression by the Government by providing a

22

“safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge.” Duncan v. Louisiana, 391 U.S.

at 156. “Given this purpose, the essential feature

of a jury obviously lies in the interposition

between the accused and his accuser of the

commonsense judgment of a group of laymen... .”

Williams v. Florida, supra, 399 U.S. at 100.

406 U.S. 404, 410 (1972). This Court, in its decision

in Duncan, cited by this Court in both Williams and

Apodaca, relied on the work of noted jurist and

historian Patrick Devlin for its description of the

historic role of the jury:

The first object of any tyrant in Whitehall would

be to make Parliament utterly subservient to his

will; and the next to overthrow or diminish trial

by jury, for no tyrant could afford to leave a

subject’s freedom in the hands of twelve of his

countrymen. So that trial by jury is more than an

instrument of justice and more than one wheel of

the constitution: it is the lamp that shows that

freedom lives.

Duncan, 391 U.S. at 155 n.23 (quoting PATRICK

DEVLIN, TRIAL BY JURY 164 (1956)) (internal quota-

tions omitted). Having considered the foregoing, the

Apodaca plurality concluded:

A requirement of unanimity . . . does not mate-

rially contribute to the exercise of this common-

sense judgment .. . In terms of this function we

perceive no difference between juries required to

act unanimously and those permitted to convict

or acquit by votes of 10 to two or 11 to one.

Requiring unanimity would obviously produce

23

hung junes in some situations where nonuna-

nimous juries will convict or acquit. But in either

case, the interest of the defendant in having

the judgment of his peers interposed between

‘himself and the officers of the State who prose-

cute and judge him is equally well served.

Apodaca, 406 U.S. at 410-11. Petitioner has

advanced no arguments that contradict such a

conclusion. Accordingly, while undeniably the right

to a trial by jury is fundamental, the requirement of

unanimitybecause it neither augments nor dimi-

nishes the historical purpose served by the jury-—is

not. To hold otherwise would be to “forever codifly] a

feature . . . incidental to the real purpose of the

[Sixth] Amendment” and “ascribe a blind formalism

to the Framers” of our Constitution. Williams v.

Florida, 399 U.S. 78, 102-03 (1970).

24

CONCLUSION

For nearly forty years, States have relied on the

clear result of this Court’s decision in Apodaca: Jury

verdicts in State criminal proceedings need not be

unanimous. Neither the Sixth Amendment nor the

Fourteenth Amendment compels a different con-

clusion, and petitioner has failed to provide any

justification for disturbing the settled precedent of

this Court. Moreover, even if this Court were to

grant petitioners request, the result which Apodaca

approves would remain unaltered. Accordingly, his

request for writ of certiorari should be denied.

Respectfully submitted,

LEON A. CANNIZZARO, JR.

Orleans Parish District Attorney

DONNA RAU ANDRIEU

Counsel of Record

Chief of Appeals

DONALD G. CASSELS, ITI

Law Clerk

ORLEANS PARISH DISTRICT

ATTORNEY'S OFFICE

619 South White Street

New Orleans, LA 70119

(504) 822-2414

dandrieu@orleansda.com

Counsel for Respondent