Amicus Curiae Brief — Lee v. Louisiana (No. 07-1523)

Supreme Court brief2008

Ask Donna

What actually matters in this document.

Text

08 SVT

No. 07-1523

Jun the Supreme Court of the United States

DERRICK TODD LEE,

Petitioner

Vv.

LOUISIANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

BRIEF OF AMICUS CURIAE THE FEDERAL

PUBLIC DEFENDER FOR THE DISTRICT

COURT OREGON IN SUPPORT OF PETITIONER

STEVEN T. WAX

Federal Public Defender

Counsel of Record

C. RENEE MANES

Assistant Federa] Defender

101 S.W. Main Street, Ste 1700

Portland, Oregon 97204

503-326-2123

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Tee of Re. oo. 5 5 eee ili

INTEREST OF AMICI CURIAE ......... | te 1

STATEMENT OF THE GME... 6. sie vee 3

SUMMARY OF ARGUMENT ...................2-. 5

RR Sn. oS ve wdc a eee eee 6

I. The Apodaca/Johnson Analysis Regarding

Non-Unanimous Juries Is Incompatible

With This Court’s Recent Jurisprudence ..... 6

A. The Analysis in Apodaca/Johnson ....... 6

B. This Court's Recent Jurisprudence

Confirms The Right To Proof Beyond

a Reasonable Doubt as a Component

of the Jury Trial Guarantee, in Both

Federal and State Criminal Cases ..... 10

C. Holdings From Jonesto Cunningham

Are Incompatible With the Apodaca/

Johnson Pluralities ................. 13

II. Deprivations Of Liberty Based On Non-

Unanimous Jury Polls Are Inconsistent

With The Protections Of The Fifth, Sixth

And Fourteenth Amendment ............. 13

A. A Trial By Jury with Proof Beyond

A Reasonable Doubt Protects an

Accused from Government

Oppression and Unreliable

ec ne wee ewes 13

B. A Lack of Unanimity Fundamentally

Alters Jury Deliberation in a Manner

that Undermines the Constitutionally

Mandated Role ofthe Jury ........... 17

C. There is No Justification for Allowing

a Lack of Unanimity in Criminal

I 18

D. The Opinion of 16% of A Properly

Constituted Jury Cannot,

Constitutionally, Be Dismissed as

I ae 22

kt we we aas OO

TABLE OF AUTHORITIES

Cases Page(s)

Apodaca v. Oregon,

406 U.S. 404 (1972) (plurality) ....... 5, 6, 7, 8,

8-9,13, 23

Apprendi v. New Jersey,

Sd0U.S. 66 CQO ..........:.. §, 10, 10-11,

li, 13, 14

Blakely v. Washington,

SASS. TORE .. .. . kc ces 5, 6, £2, 13

Cunningham v. California,

1275S. Ct. 856 (2007) ..............; 6, 12, 13

Duncan v. Louisiana,

BOLUS. SOG CISSD .. oe cee 6, 7, 8, 14

Holland v. United States,

DOUG. 51 CHGS)... . wo eves ec eecnn 23

In re Winship,

397 U.S. 358 (1970) ................. 7 15

Johnson vy. Loutsiana,

406 U.S. 366 (1972) (plurality) ....... 5, 6, 7, 9

10, 13, 23

Jones v. United States,

526 U.S. 227 (1999) ........... §, 10, 10-11, 13

Marks v. United States,

430 U.S. 18661977) ...............

fting v. Arizona,

OSG 17.8. GRA CQO0E) 2... ccc

Sperser v. Randall,

S67 U.S. GS (A968) ..... 2... we eee:

State v. Basargin,

213 Or. App. 515, 162 P.3d 325

Te ee

State v. Bowen,

215 Or. App. 199, 168 P.3d 1208

oa es

State v. Miller,

214 Or. App. 494, 166 P.3d 591

(2007), as amended, 217 Or. App. 576,

176 P.3d 425 (Or. App. 2008) .......

State v. Norman,

216 Or. App. 475, 174 P.3d 598

oy cag 5

State v. Phillips,

217 Or. App. 93, 174 P.3d 1032

ee I TD go ie vw eeves el

State v. Rennel/s,

213 Or. App. 423, 162 P.3d 1006

et Ss EE Ws cede ease ewes

United States v. Gaudin,

a Sd | |

Walton v. Arizona,

BL Ee. | rs il

Constitutional Provisions Page‘a)

Constitution Of The United States

Fifth Amendment ................. 1, 33. 78

re passim

Fourteenth Amendment .............. passim

Constitution of the State of Oregon

I cae 4a wan bh ee aS 1:2, 3-4

Statutes Page(s)

ON ne oo eens cna cyedoeducn 1

Rules of the Supreme Court Page(s)

Ee ar Nd ot Cee ae l

RI en Tira tc) se 0 Pee EL a ee

Other Authorities Page(s)

4 W. Biackstone, Commentaries on the Laws of

Englend 348 (1769) ................... 6, 12

Alschuler & Deiss, A Brief History of the

Criminal Jury in the United States,

61 U. Cut. L. REV. 867 (1994) ............. 14

Amar, Akhil Reed, Reinventing Juries: Ten

Suggested Reforms, 28 U.C. DAVIS L. REV.

Ts i ie Gh 21

Comment, Letting the Supermajority Rule:

Nonunanimous Jury Verdicts in Criminal

Trials, 24 FLA. ST. U. L. REV. 659 (1997) .... 19

Devine et a/, Jury Decision Making: 45 Years

of Empirical Research on Deliberating

Groups, 7 PSYCHOL. PuB. POL'Y & L. 622

I Gee ted nae 4 gas a a kl a is ew 8 ace > 21

Diamond, Rose & Murphy, Hevisiting the

Unanimity Requirement: The Behavior of

the Non-Unanimous Civil Jury, 100 Nw.

4. Rey. BOs CO... ee. 4, 17, 18, 21

Dorsen & Rezneck, Jn Re Gault and the

Future of Juvenile Law, 1 FAMILY LAW

QUARTERLY, NO. 4(1967) ................ 16

Dwyer, William L., /n the Hands of The

People (St. Martin's Press, 2002) .......... 14

Leib, Ethan J., A Comparison of Criminal

Jury Rules in Democratic Countries,

50 OHIO ST. J. CRIM. L. 629 (Spring 2008) . 13-14

Morehead, Jere W., A “Modest” Proposal! for

Jury Reform: The Elimination of

Required Unanimous Jury Verdicts,

46 U. KAN. L. REV. 933 (1998) .......... 18-19

National Center for State Courts, Are Hung

Juries a Problem? available at: www.

ncsconline.org/WC/Publhications/

Res_Juries_HungJuriesProblemPub.pdf .. 19°21

Note, Jury Unanimity in Calrfornia: Should

it Stay or Should it Go? 29 Loy. L.A. L.

i, ne ee ae 19

Note, Mon:Unanimous Jury Verdicts, 86 HARV.

ig I IEE gi ioe Gag Se wing Www 6 x aes 7

Primus, Richard A., When Democracy is

Not Self-Government: Toward a Detense

of the Unanimity Rule for Criminal

Juries, 18 CARDOZO L. REV. 1417

Se Bre se, Sk oe hee ddan ees 22

Reichelt, Jason, Standing Alone: Conformity,

Coercion, and the Protection of the

Holdout Juror, 40 U. MICH. J.L.

REFORM 569 (Spring 2007) ............. 19,21

Taylor-Thompson, Kim, Zapty Votes in

Jury Deitberations, 113 HARV. L. REV.

ROGET GA ek 6 6 ob ow cn we ives 17, 18, 19

www.ojd.state.or.us/osca/documents/-

2007 State Tabte.G OOlpak .. 2... cc cccves 2

INTEREST OF AMICI CURIAE'

The Federal] Public Defender for the District of

Oregon seeks leave to file as an amici curiae on

Question 1 of the Petition for Writ of Certiorari,

whether a criminal conviction based on a non-

unanimous jury pol] violates the Sixth and Fourteenth

Amendments.’

The Federal] Public Defender for the District of

Oregon has a twenty-five year history of active

representation of petitioners in actions pursuant to 28

U.S.C. § 2254, before the United States District Court

for the District of Oregon and the United Siates Court

of Appeals for the Ninth Circuit. A significant portion

of these actions involve convictions by non-unanimous

jury verdicts, which is allowed in Oregon pursuant to

the Constitution of the State of Oregon, Article I,

“ Pursuantto Rule 37.3, counsel for amicus states that the

parties have consented to the filing of this bref: letters of consent

from the parties have been submitted to the Clerk of Court.

Pursuant to Rule 37.6, counsel for amucr states that no counsel for

a party authored this brief in whole or in part, and no counse! or

party made a monetary contribution intended to find the

preparation or submission of this brief. No person other than

amicus curiae, its members or its counsel made a monetary

contribution to its preparation or submission.

# Amicus curiae believe that the requirement for

unanimity is grounded in the right to proof beyond a reasenable

doubt based in either the jury trial protections of the Sixth

Amendment or the Due Process protections of the Fifth and

Fourteenth Amendments. Regardless of where the right it based,

itis a fundamental component of the American system of justice.

Section 11.*

The Federal Public Defender has several

matters pending before both the district courts and the

Ninth Circuit Court of Appeals raising the substantive

issue of whether a deprivation of liberty based on a

non‘unanimous jury poll violates the Sixth

Amendment to the Constitution of the United States

presented as Question 1 in this matter, and additional

procedural matters that are not presented here. Cases

pending before the Ninth Circuit include: Pickett v.

Hall, Ninth Circuit Case No. 07-35686 (fully briefed

and pending argument):‘ Reedy v. Blacketter, Ninth

Circuit Case No. 08°35188 (in the briefing stages): and

Burris v. Belleque, Ninth Circuit Case No. 08-35234

(seeking a Certificate of Appealability on this issue).

” As with other jurisdictions, the vast majority of criminal

convictions in Oregon are pursuant to a guilty plea. Statistics

made available by the Oregon Justice Department reflect that for

the calendar year of 2007, there were a total of 37,716 felony cases

filed in the State of Oregon, of which only 994 — 2.6% — proceeded

through a jury tnal. See www.ojd state.or.us/osca/documents/-

2007_Stats_Table_6_001.pdf. Amyci curiae are not aware of any

Statistics that are kept on the number of convictions that are

based on a non-unanimous jury poll. Inquiry of criminal tral

lawyers in the state, including with the public defender offices in

the major metropolitan areas of Portland and Eugene, indicate

that between one-third and one-half of al) criminal convictions

after a jury trial are through non-unanimous verdicts.

“ Mr. Pickett’s case is illustrative. On June 13, 2000,

Mr. Pickett was 42 years old, and was convicted of a felony crime

by jury poll of 10-2. Asa result, he was sentenced to a term of 375

months in prison, or over 30 years. Should Mr. Pickett survive to

be potentially paroled in his 70s, he will be on post-prison

supervision for anuther 20 years.

In addition, the Federal Public Defender undertakes

continuing legal education exchanges with Oregon's

State Public Defender’s Office, which is actively

pursuing the substantive question in appeals pending

before the Oregon state courts. Published results in

cases raising this issue before the Oregon state courts

include: State v. Miller, 214 Or. App. 494, 166 P.3d 591

(2007), as amended, 217 Or. App. 576, 176 P.3d 425

(Or. App. 2008); State v. Phillips, 217 Or. App. 93, 174

P.3d 1032 (Or. App. 2007); State v. Norman, 216 Or.

App. 475, 174 P.3d 598 (Or. App. 2007); State v.

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

2007): State v. Basargin, 213 Or. App. 515, 162 P.3d

325 (Or. App. 2007): State v. Rennells, 213 Or. App.

423, 162 P.3d 1006 (Or. App. 2007).

A ruling on the substantive issue will, therefore,

have direct impact on numerous cases pending before

the federal and state courts in the district of Oregon.

STATEMENT OF THE CASE

Amici curtae join the statement of the case

presented by counsel for Petitioner. In addition, amici

curiae note that in 1934, Oregon adopted a state

constitution which allowed, in Article I, § 11, that in

all cases save first degree murder, criminal convictions

could be entered, and individuals could be deprived of

their liberty, by a jury poll of 10-2. The article reads:

In all criminal prosecutions, the accused

shall have the right to public trial by an

impartial jury in the county in which the

offense shall have been committed; to be

heard by himself and counsel; to demand

the nature and cause of the accusation

against him, and to have a copy thereof,

to meet the witnesses face to face, and to

have compulsory process for obtaining

witnesses in his favor: provided, however,

that any accused person, in other than

capital cases, and with the consent of the

trial judge, may elect to waive trial by

jury and consent to be tried by the judge

of the court alone, such election to be in

writing: provided, however, that in the

circuit court ten members of the jury may

render a verdict of guilty or not guilty,

save and except a verdict of guilty of first

degree murder, which shall be found only

by a unanimous verdict, and not

otherwise: provided further, that the

existing laws and_ constitutional

provisions relative to criminal

prosecutions shall be continued and

remain in effect as to all prosecutions for

crimes committed before the taking effect

of this amendment.

Oregon and Louisiana are the only two jurisdictions

allowing individuals to be convicted of a crime by a

non‘unanimous jury poll. See Diamond, Rose &

Murphy, Aevisiting the Unanimity Requirement: The

Behavior of the Non-Unanimous Civil Jury, 100 Nw.

ULL. REV. 201, 203 (2006) (“jury verdicts in felony

trials must be unanimous in federal courts and in all

states except Louisiana and Oregon”).

SUMMARY OF ARGUMENT

Depriving an individual of his hberty and

freedom based on a non-unanimous jury poll is a

violation of the fundamenta! rights including the right

to a trial by jury, to proof beyond a reasonable doubt,

and to due process, as guaranteed in criminal trials in

state courts by the Sixth and Fourteenth Amendments

to the Constitution of the United States. When a

properly constituted jury is not able to reach a

unanimous verdict, the state has failed to sustain its

burden of proving beyond a reasonable doubt that the

accused has committed any crime.

Criminal convictions by non-unanimous jurics

were left standing almost forty years ago in the

companion decisions of Apodaca v. Oregon, 406 U.S.

404 (1972) (plurality) and Johnson v. Louisiana, 406

U.S. 366 (1972) (p/urality). The opinions presented a

fractured analysis, with the resolution turning on the

opinion of a single justice, Justice Powell, that, while

the Sixth Amendment required proof beyond a

reasonable doubt to a unanimous jury in federal

criminal trials, those rights were not wholly

incorporated to the states through the Fourteenth

Amendment.

The rational of Apodaca//Johnsonhas been called

into question by a series of majority decisions that

reexamine and reaffirm the jury trial guarantees ofthe

Sixth Amendment, including Jones v. United States,

526 U.S. 227(1999), Apprend: v. New Jersey, 530 U.S.

466 (2000), Ring v. Arizona, 536 U.S. 584 (2002),

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

Cunningham v. California, 127 S. Ct. 856 (2007).

Question 1 of the petition asks this Court

whether Apodaca//Johnson remains valid because a

deprivation of liberty based on a non-unanimous jury

poll is incompatible with the protections of the Sixth

and Fourteenth Amendments recognized in these more

recent majority opinions. Amucr curiae join with

counsel for the Petitioner in urging this Court to

accept certiorari to resolve Question 1, and to reaffirm

that the our constitution guarantees that no individual

may be deprived of his liberty unless the state has

“sufferled] the modest inconvenience of submitting its

accusation to ‘the unanimous suffrage of twelve of his

equals and neighbours,”. Blakely, 542 U.S. at 313-314

(quoting 4 W. Blackstone, Commentaries on the Laws

of England 343 (1769).)

ARGUMENT

I. The Apedaca/Johnson Analysis Regarding

Non-Unanimous Juries [s Incompatible With

This Court’s Recent Jurisprudence.

A. The Analysis in Apodaca/Johnson.

In Duncan v. Loutsiana, 391 U.S. 145, 148-149

(1968), this Court confirmed that the Sixth

Amendment right to a jury trial applied to state court

criminal proceedings through incorporation via the

Due Process Clause of the Fourteenth Amendment.

Two years later the Court was asked to consider

whether a conviction based on a non-unanimous jury

poll was compatible with these nghts in cases arising

—

from the only two jurisdictions that allowed such

convictions, Oregon and Louisiana.

The cases bracketed the decision in Duncan v.

Lousiana, with Johnson v. Loutsiana predating that

decision, and Apodaca v. Oregon post-dating. Note,

Non-Unanimous Jury Verdicts, 86 HARV. L. REV. 148,

148-149 (1972). Because of the timing, Johnson

challenged the non-unanimity based primarily on the

Fourteenth Amendment while Apodaca rested his

contentions on the Sixth Amendment, arguing that

unanimity under the Sixth Amendment was critical for

giving meaning to the requirement for proof beyond a

reasonable doubt. As the Court explained:

Petitioners nevertheless argue that

unanimity serves other purposes

constitutionally essential to the

continued operation of the jury system.

Their principal contention is that a Sixth

Amendment ‘jury trial’ made mandatory

on the States by virtue of the Due

Process Clause of the Fourteenth

Amendment, Duncan v. Loursiana, supra,

should be held to require a unanimous

jury verdict in order to give substance to

the reasonable-doubt standard otherwise

mandated by the Due Process Clause.

See /n re Winship, [397 U.S. 358 (1970)].

Apodaca, 406 US. at 411.

No majority was reached. Several justices

opined that the Sixth Amendment guaranteed neither

proof beyond a reasonable doubt nor a unanimous jury

in any criminal case:

Petitioners’ argument that the

Sixth Amendment requires jury

unanimity in order to give effect to the

reasonable-doubt standard thus founders

on the fact that the Sixth Amendment

does not require proof beyond a

reasonable doubt at all.

Apodaca, 406 U.S. at 412, & 407-408 (White, J., joined

by Warren, C.J., Blackmun, J., and Rehnquist, J.).

Other justices believed that those guarantees had

always been contained in the Sixth Amendment and

must apply equally to criminal trials before any state

court via the due process provisions of the Fourteenth

Amendment:

In Duncan v. Loutsiana, (supra)

the Court squarely held that the Sixth

Amendnient right to trial by jury in a

federal criminal case is made wholly

applicable to state criminal tz1als by the

Fourteenth Amendment. Unless Duncan

is to be overruled, therefore, the only

relevant question here is whether the

Sixth Amendment's guarantee of trial by

jury embraces a guarantee that the

verdict of the jury must be unanimous.

The answer to that question is clearly

‘yes, as my Brother Powell has cogently

demonstrated in that part of his

concurring opinion that reviews almost a

century of Sixth Amendment adjudica-

tion.

Apodaca, 406 U.S. at 414 (Stewart, J., joined by

Brennan and Marshall, dissenting)

The plurality ultimately turned on whether the

Sixth Amendment jury trial rights that demanded

unanimity were fully incorporated to the states

through the Fourteenth Amendment, or whether the

rights that were incorporated were less stringent than

those mandated in federal trials. Justice Powell,

writing for himself alone in a concurring opinion,

concluded that the Sixth Amendment rights were not

fully incorporated:

I concur in the plurality opinion in

this case insofar as it concludes that a

defendant in a_e state court may

constitutionally be convicted by less than

a unanimous verdict, but I am not in

accord with a major premise upon which

that judgment is based. Its premise is

that the concept of jury trial, as

applicable to the States under the

Fourteenth Amendment, must be

identical in every detail to the concept

required in federal courts by the Sixth

Amendment. I do not think that all of

the elements of jury trial within the

meaning of the Sixth Amendment are

necessarily embodied in or incorporated

into the Due Process Clause of the

Fourteenth Amendment.

Johnson, 406 U.S. at 366 (Powell, J., concurring).

Because his is the narrowest view of any justice

concurring in the judgments, Justice Powell's analysis

igs deemed the holding of the Court. Marks v. United

States, 430 U.S. 188, 193 (1977).

B. This Court’s Recent Jurisprudence

Confirms The Right To Proof Beyond a

Reasonable Doubt as a Component of

the Jury Trial Guarantee, in Both

Federal and State Criminal Cases.

In a series of decisions starting with Jones v.

United States, this Court has analyzed the protections

of the Sixth Amendment, including the questions of

whether those protections guarantee the right to proof

beyond a reasonable doubt of every fact alleged by the

state that supports a deprivation of liberty, and

whether the requirement for such proof extends to

criminal trials in state court proceedings. This Court

has repeatedly answered ‘yes’ to both questions.

In Jones, this Court held simply that the Sixth

Amendment guarantees the right to have any fact that

is an element of the offense “must be charged in the

indictment, submitted to a jury, and proven by the

Government beyond a reasonable doubt.” 526 U.S. at

232. Jones was a federal criminal trial involving

statutory interpretation, but in Apprendi v. New

Jersey, this Court referenced Jones in confirming that

these rights extended to state criminal trial under

Sixth and Fourteenth Amendments:

We [in Jones] noted that “under the Due

Process Clause of the Fifth Amendment

and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other

than prior conviction) that increases the

maximum penalty for a crime must be

charged in an indictment, submitted toa

jury, and proven beyond a reasonable

doubt.” /d., at 243, n. 6, 119S. Ct. 1215.

The Fourteenth Amendment commands

the same answer in this case involving a

state statute.

Apprendi, 530 U.S. at 476. This Court reconfirmed its

analysis two years later in Aing v. Arizona:

The dispositive question, we said, “is one

not of form, but of effect.” LApprend/s, 530

U.S.] at 494, 120S. Ct. 2348. Ifa State

makes an increase in a defendant’s

authorized punishment contingenton the

finding of a fact, that fact — no matter

how the State labels it — must be found

by a jury beyond a reasonable doubt

536 U.S. at 602. °

Two years after Aing, this Court again applied

the jury trial rights of the Sixth Amendment to state

court proceedings, and confirmed that the requirement

* In doing so, this Court overturned the prior ruling of

Walton v. Anizona, 497 U.S. 639 (1990), noting that Wa/ton was

incompahble with its analysis of its Sixth Amendment rights

recognized in Apprendi. Fung, 536 US. at 609.

for proof beyond a reasonable doubt was within the

Framer’s original intent for the Sixth Amendment:

The Framers would not have thought it

too much to demand that, before

depriving a man of three more years of

his liberty, the State should suffer the

modest inconvenience of submitting its

accusation to “the unanimous suffrage of

twelve of his equals and neighbours,” 4

Blackstone, Commentaries, at 343,

rather than a lone employee of the State.

Blakely, 542 U.S. at 313-14. And in Cunningham v.

California, this Court recognized it has:

[Rlepeatedly held that, under the Sixth

Amendment, any fact that exposes a

defendant to a greater potential sentence

must be found by a jury, not a judge, and

established beyond a reasonable doubt,

not merely by a preponderance of the

evidence.

127 S. Ct. at 863-64.

While these cases involved facts justifying a

greater sentence after a defendant had already been

convicted — by a unanimous jury in each and every

case — there is no basis to distinguish the

determination of guilt of any crime in the first

instance.

C. Holdings From Jones to Cunningham

Are Incompatible With the Apodaca/

Johnson Pluralities.

The plurality analyses that left standing

convictions by non‘unanimous juries in Apodaca/

Johnson were founded on two theories: that proof

beyond a reasonable doubt was not required in

criminal trials, or that if required in federal criminal

trials, that requirement did not extend to criminal

trials in state courts. Both of those theories have been

soundly and repeatedly rejected by this Court's recent

jurisprudence. The Fifth, Sixth and Fourteenth

Amendment protections recognized in Jones, Apprendi,

Ring, Blakely, and Cunningham cannot be reconciled

with the plurality analysis of Apodaca/Johnson, and

those decisions can no longer justify allowing criminal

convictions by non-unanimous jury polls.

Il, Deprivations Of Liberty Based On Non-

Unanimous Jury Polls Are Inconsistent With

The Protections Of The Fifth, Sixth And

Fourteenth Amendment.

A. A Trial By Jury with Proof Beyond A

Reasonable Doubt Protects an Accused

from Government Oppression and

Unreliable Convictions.

America iS unique in its recognition of a

constitutionally protected nght to a jury for any crime

which would result in a deprivation of liberty. Leib,

Ethan J., A Comparison of Criminal Jury Rules in

Democratic Countries, 50 OHIOST. J. CRIM. L. 629, 630

(Spring 2008) (“the United States offers the jury trial

much more broadly to criminal defendants than other

countries’); Dwyer, William L., /n the Hands of The

People, at xi (St. Martin’s Press 2002) (“To visitors

from abroad — even to some Americans — the jury is a

surprising invention, . . No other modern society has

bet so heavily on the common man's and woman's good

sense.")

The right to a criminal trial by jury has been

one of the least controversial rights guaranteed by our

Constitution: the right was included in the First

Continental Congress's Declaration of Rights of 1774;

of the twelve states that had adopted written

constitutions prior to the Constitutional Convention,

the right of a criminal defendant to a jury tna! was the

only right universally guaranteed; and the need to

safeguard the right to a trial by jury was one of the

“most consistent points of agreement between the

Federalists and the Anti-Federalists” at the

Constitutional Convention. Alschuler & Deiss, A Brief

History of the Criminal Jury in the United States, 61

U. CHI. L. REV. 867, 870-71 (1994). The right of an

accused to a jury trial is recognized as necessary to

“prevent oppression by the Government.” Duncan v.

Louisiana, 391 U.S. at 155; see also Apprend), 530

U.S. at 477-78 (discussing that the jury has

historically been, and is perceived by the public as

being, the last bastion between the criminally accused

and the power of the state) (citing United States v.

Gaudin, 515 U.S. 506 (1995)).

While the jury stands between the accused and

the government, the “beyond a reasonable doubt”

standard both ensures that the jury will accurately

fulfill its responsibilities when deciding the fate of an

accused and encourages respect for, and confidence in,

the jury's decision:

The requirement of proof beyond a

reasonable doubt has this vital role in

our criminal procedure for cogent

reasons, The accused during a criminal

prosecution has at stake interests of

immense importance, both because of the

possibility that he may lose his liberty

upon conviction and because of the

certainty that he would be stigmatized by

the conviction. Accordingly, a society that

values the good name and freedom of

every individual should not condemn a

man for commission of a crime when

there is reasonable doubt about his guilt.

As we said in Speiser v. Randall, supra,

357 U.S. [513], at 525°526, 78 S. Ct.

[1332], at 1342 [(1958)]: ‘There is always

in litigation a margin of error,

representing error in factfinding, which

both parties must take into account.

Where one party has at stake an interest

of transcending value — as a criminal

defendant his liberty — this margin of

error is reduced as to him by the process

of placing on the other party the burden

of * * * persuading the factfinder at the

conclusion of the trial of his guilt beyond

a reasonable doubt. Due _ process

commands that no man shall lose his

liberty unless the Government has borne

the burden of * * * convincing the

factfinder of his guilt.’ To this end, the

reasonable-doubt standard is

indispensable, for it ‘impresses on the

trier of fact the necessity of reaching a

subjective state of certitude of the facts in

issue.” Dorsen & Rezneck, /n Re Gault

and the Future of Juvenile Law, 1

FAMILY LAW QUARTERLY, No. 4, pp. 1, 26

(1967).

Moreover, use of the reasonable:

doubt standard is indispensable to

command the respect and confidence of

the community in applications of the

criminal law. It is critical that the moral

force of the criminal law not be diluted by

a standard of proof that leaves people in

doubt whether innocent men are being

condemned, It is also important in our

free society that every individual going

about his ordinary affairs have

confidence that his government cannot

adjudge him guilty of a criminal offense

without convincing a proper factfinder of

his guilt with utmost certainty.

In re Winship 397 U.S. at 363-364.

The questions becomes whether the jury can

fulfill its fundamental functions when the opinion of

a significant percentage of its members — 16% — is

deemed to be irrelevant.

B. A Lack of Unanimity Fundamentally

Alters Jury Deliberation in a Manner

that Undermines the Constitutionally

Mandated Role of the Jury.

The lack of a unanimity requirements

fundamentally impacts the conduct of a jury: empirical

evidence documents that failing to require unanimity

negatively affects the jury’s deliberation process and

the accuracy of its fact findings.

Studies of juries that were told they did not

have to reach unanimity documented that the juries

were less concerned about deliberation and more

focused on quickly getting to a verdict; such juries

refused to consider the merits of the minority view,

they were likely to take the first formal ballot within

ten minutes of being seated as a jury, and to continue

to vote often until they reached a verdict by the

required number. Revisiting the Unanimity

Requirement, 100 Nw. U. L. REV. at 208. In marked

contrast, mock juries that were told they had to reach

a unanimous verdict delayed their vote until after they

had discussed the evidence and rated their

deliberzitions as both more serious and more thorough.

Id. Other studies document that when unanimity is

not required, the opinions of individual jurors are

disenfranchised — and members of a minority or

women are the most likely to be disenfranchised.

Taylor-Thompson, Kim, £mpty Votes in Jury

Deliberations, 113 HARV. L. REV. 1261, 1285-87, 1299-

1301 (April 2000).

The lack of deliberation has a direct impact on

the quality of the verdict. A lack of deliberation can

negatively impact the verdict’s accuracy. In one study,

individuals called for jury duty were instead asked to

sit as mock jurors, and viewed a video of a trial of a

case that was intentionally designed by experts not to

be sufficient as first degree murder, but instead of a

lesser charger. Of the juries that had to deliberate

until they reached unanimity, not one jury could reach

a unanimous vote of first degree murder; of the juries

that were allowed to reach a majority vote, 12%

returned a verdict of first degree. Empty Votes in Jury

Deliberations, 113 HARV. L. REV. at 1273. In short, the

juries that had to be unanimous more accurately

analyzed the evidence, those that did not have to be

unanimous were less likely to do so.

The lack of deliberation also impacts the

perception of the jury's role. Juries that are

unanimous report great satisfaction and confidence in

their verdicts. Revisiting the Unanimity Requirement,

100 Nw. U. L. REV. at 208. In contrast, the failure to

consider all of the opinions on a jury “could undermine

public confidence in the fairness of the verdicts.”

Empty Votes in Jurv Deliberations, 113 HARV. L. REV.

at 1314.

C. There is No Justification for Allowing a

Lack of Unanimity in Criminal! Juries.

A primary reason for allowing non-unanimous

juries is a contention that those who vote “not guilty’

are unreasonable, hold-out, jurors simply seeking to

cause a hung verdict. See Morehead, Jere W., A

“Modest” Proposal for Jury Reform: The Elimination of

Required Unanimous Jury Verdicts, 46 U. KAN. L. REV.

933, 935 (1998); Comment, Letting the Supermajority

Rule: NonunanimousJdury Verdicts in Criminal Trials,

24 FLA. ST. U. L. REV. 659, 675 (1997); Note, Jury

Unanimity in California: Should it Stay or Should it

Go? 29 Loy. L.A. L: REV. 1319, 1347 (1996).

If such a concern was true, however, one would

expect a plethora of hung:juries in every jurisdiction

that requires unanimity. There is no reason to believe

that the individuals called to state jury service in

Oregon are more unreasonable than those jurors called

to serve in federal courts in the same jurisdiction, or

into every other court in the nation both state and

federal. As Oregon has about one‘third to one-half of

all felony trials decided by non-unanimous jury votes,

logically one would expect that one-third to one-half of

every criminal case in jurisdictions requiring

unanimity to suffer hung juries. In reality, hung juries

are rare in all jurisdictions, with analysis finding only

2% of federal trials, and between 4% and 6% of state

trials, ending in such verdicts. Reichelt, Jason D.,

Standing Alone: Conformity, Coercion, and the

Protection of the Holdout Juror, 40 U. MICH. J.L.

REFORM 569, 582-83 (Spring 2007): Empty Votes in

Jury Deliberations, 113 HARV. L. REV. at 1287 n.150.

An analysis undertaken through the National

Center for State Courts via a grant from the

Department of Justice, found that less than 4.8% of

federal trials between 1980 and 1997, and an average

of 6.2% of state trials between 1996 and 1997, ended in

hung juries. Are Hung Juries a Problem? at 19°25.°

While the authors of the research project considered

utilizing non-unanimous juries as a solution, the

recommendations rejected that option as not

addressing the real problems causing hung juries —

which was not unreasonable hold-out jurors:

But it is also clear from this study that

such an approach would address the

symptoms of disagreement among jurors

without necessarily addressing the actual

causes — namely, weak evidence, poor

interpersonal dynamics during

deliberations, and jurors’ concerns about

the appropriateness of legal enforcement

in particular cases. Moreover, there is

empirical support that the introduction of

a non-unanimous verdict rule might also

affect the jury's deliberation process in

unintended ways such as cutting off

minority viewpoints before the jury has

an opportunity to consider those opinions

thoroughly. Solutions that focus

specifically on the underlying causes of

juror deadlock, rather than on its effects,

may prove to be more effective in the long

run. Possible remedies include better

case selection and preparation by

attorneys: better tools for jurors to

Res_Juries_HungJunesProblemPub pdf

understand the evidence and law; and

guidance for jurors about how to conduct

deliberations.

Id. at 86.

Frequently when a jury is unable to resolve a

case, it is because they jury started out significantly

divided in their view of the case — not because of a

lone, irrational, dissenter. Standing Alone, 40 U.

MICH. L.J. REFORM at 570-71 (citing Devine et al, Jury

Decision Making: 45 Years of Empirical Research on

Deliberating Groups, 7 PSYCHOL. FuB. POL'y & L. 622,

690-707 (2001). Other empirical research confirms

that, far from been unreasonable, hold-out jurists in

both non-unanimous civiJ juries and mock criminal

trial juries frequently took the same position as taken

by the judges who heard the case. Fevisiting the

Unanimitvy Requirement, 100 Nw. U. L. REV. at 229-

230. Allowing non-unanimous verdicts does not solve

the non-existent problem of unreasonable hold-out

jurists, and cannot be justified on that basis.

Another justification cited for allowing non-

unanimous juries is that majority vote is quite

common in democracy - it is utilized in elections,

legislative, and even in appellate judicial proceedings.

See Amar, Akhil Reed, Reinventing Juries: Ten

Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1189-

90 (1995). Why, then, would it not be reasonable for

juries as well? Yet legislatures and judiciaries make

prospective laws that bind everyone subject tothat law

~ including the members of the legislature and the

judiciary themselves. If the same or a different

legislature, or a different judicial panel, decides that

the prior law was inappropriate or somehow mistaken,

they can always rectify their action by a new

enactment. At no point is a legislature or judicial

panel obligated to determine that their enactment is

appropriate beyond a reasonable doubt — and few laws

could be passed or decisions reached if that was the

standard. In marked contrast, the decision of a

criminal jury impacts not them, but the defendant, and

it cannot be revisited if the same jurors later doubt

their decision. Further, the decisions controls the most

fundamental interests guaranteed by our constitution

—life and liberty. The standard of beyond a reasonable

doubt is required to protect these fundamental

interests, and a majority rule is simply not compatible

with that standard. See Primus, Richard A., When

Democracyis Not Self-Government: Toward a Defense

of the Unanrmity Rule for Criminal Juries, 18

CakDOZO L. REV. 1417 Wanuary, 1997). *

D. The Opinion of 16% of A Properly

Constituted Jury Cannot,

Constitutionally, Be Dismissed as

Unreasonable.

Criminal] juries are selected from lsts of

qualified individuals who make up a venire. These

individualsare then questioned to discern any bias or

other basis to remove them for cause, and only after

each side has exercised its peremptory challenges is

the petit panel duly sworn to impartially consider the

evidence and apply the law. After hearing all the

evidence end instructions, the panel retires to

deliberate and reach a verdict. In Oregon and

Louisiana, however, the opinions of 16% of these well

qualified jurors are frequently ignored.

For such a conviction to pass constitutional

muster under the Sixth and Fourteenth Amendments,

this Court must determine that the doubts of these

16% of the jury are necessarily, and always,

unreasonable. Neither history, logic, nor empirical

research, supports such a determination. As Justice

Marshall wrote in dissent, joined by Justice Brennan,

in Apodaca/Johnson:

The doubts of a single juror are in my

view evidence that the government has

failed to carry its burden of proving guilt

beyond a reasonable doubt.

406 U.S. at 403.

A common joke in Oregon among the defense

bar is that if the classic 7we/ve Angry Men had been

filmed here, it would have been a very short film

indeed. This Court has rightly refused to apportion a

mathematical number for the “beyond a reasonable

doubt” standard of proof. See, e.g, Holland v. United

States, 348 U.S. 121 (1955). Yet that is what Oregon

and Louisiana are de facto doing, they are setting

“beyond a reasonable doubt” as the conclusion of 84%

of the jury.

There is simply no support, either in empirical

research or at common law, to believe that the doubts

of 16% of a properly constituted petit jury panel are

always unreasonable. Convictions based on a jury poll

which is not unanimous are convictions attained based

on a level of proof lower than beyond a reasonable

doubt, and are therefore in violation of the guarantees

provided by the Sixth and Fourteenth Amendments.

CONCLUSION

For the reasons presented herein, amuci curtae

join with petitioner in asking this Court to accept

certiorarion the first question, and determine whether

the practice of depriving an individual of their liberty

based on a non‘unanimous jury poll is in violation of

the protections afforded to an accused by the Sixth and

Fourteenth Amendments.

Dated: July 7, 2008 Respectfully submitted,