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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0980%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## 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

iv

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.

1

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.

2

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

10

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.

11

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.

12

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

13

(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”

14

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

15

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.

16

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

17

7

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

18

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

19

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

© Available at: www-ncsconline.org/WC/Publications/-
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

21

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

22

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

23

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,

STEVEN T. WAX

Federal Public Defender
Counsel of Record

C. RENEE MANES
Assistant Federal Defender
101 S.W. Main Street, Ste 1700
Portland, Oregon 97204
503-326-2123

Counsel for Amici Curiae

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0980%3A5. Public record. Not legal advice.