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

f (& FILED

No. 07-1523 JUL - 7 2008

ideas OFFICE OF THE CLERK

SUPREME COURT, U.S.

Supreme Court of the Anited States

DERRICK TODD LEE,

Petitioner,

V.

STATE OF LOUISIANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

BRIEF FOR THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JEFFREY T. GREEN CHARLES S. LEEPER

SIDLEY AUSTIN LLP Counsel of Record

1501 K Street, N.W. MICHAEL R. MINER

Washington, D.C. 20005 MARK H. M. SOSNOWSKY

(202) 736-8000 DRINKER BIDDLE & REATH LLP

1500 K Street, N.W.

Washington, DC 20005

(202) 842-8800

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the Sixth Amendment right to jury trial,

as applied to the States through the Fourteenth

Amendment, allows a criminal conviction based on a

non-unanimous jury verdict.

TABLE OF CONTENTS

QUESTION PRESENTED ......ccccccssssssssscssssssssssecssscssensnn

TABLE OF CONTENTS ..ccssssssecccccscsscsccscosossssssssecssssssese ii

TABLE OF AUTHORITIES ..ceeccccsssssscsscsssssssssssscssesssesen iii

INTEREST OF AMICUS CURIAR ucccceccssccccssssecsessseee 1

SUMMARY OF ARGUMENT....c-cccccccssccssccccsssseeseseessssse 3

REASONS FOR GRANTING THE PETITION........... 3

I. The Louisiana Statute, As Endorsed By Apodaca

and Johnson, Runs Counter To The Historically

Recognized Constitutional Protections Of Trial By

Jury And The Reasonable Doubt Standard........... 4

II. A Substantial Body Of Post-Apodaca Case Law

Demonstrates That The Court’s Assumptions

And Hunches Regarding Jury Behavior Were

alec rnsiiiag rs tuduuue bcachpee wuswnvausmeeneos 10

I{l. Empirical Research On The Behavior Of Juries

Confirms The Wisdom Of The Historical

Unanimity Requirement..................cscrsessscesseesees 13

IV. The Louisiana Statute Dilutes The Reasonable

Doubt Standard For Defendants Accused Of

BOA EE CIO. v5 cvse cus cecesincesieseeesccssnens 15

V. The Majority-Verdict Scheme Severely

Disadvantages Defendants During Jury

nid seni netwnmin onaboendcebibes 17

VI. Allowing Conviction On The Basis Of Non-

Unanimous Juries Is Inherently Coercive And

Discourages Juror Dissent.....................2008 18

ID cocbcakveisecedondveryharvieresigxtyies cohen iene 22

iil

TABLE OF AUTHORITIES

FEDERAL CASES

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

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............. LZ

Burch v. Louisiana, 441 U.S. 180 (1979).............. 8, 16, 21

Cunningham v. California, 549 U.S. 270 (2007)............ 9

Duncan v. Louisiana, 391 U.S. 145 (1968)........... 3, 4, 5,6

arty v. PACK&eEr, BET UG, BIO nav scsisvnsiessncgsnoesosissse 11, 12

In re Hoare, 155 F.3d 937 (8th Cir. 1998).....0.00.0. 0... 13

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

Lewis v. United States, 146 U.S. 370 (1892)... 17

Sullivan v. Louisiana, 508 U.S. 275 (1998)... 8,9

Swain v. Alabama, 380 U.S. 202 (1965) 0... eee eeeee 18

United States v. Brown, 411 F.2d 930 (7th Cir.

NN chistes nsaidicoaoscaeSisaate da ae asia Mae aceasta ase 19

United States v. Burgos, 55 F.3d 933 (4th Cir.

RE bicteeeshitnaidsvncerewissebicairei a aanacaienleneebiai as liateavaeeninoweled 19

United States v. Correa-Ventura, 6 F.3d 1070

SE i Sa sich vcninhdnissseipudccaligaidcbihesaientaovaaamocansiailnemens 15

United States v. Dorsey, 865 F.2d 1275 (D.C. Cir.

SOR RNR eeel AO Ren neve ear eIeE Liscidsadebasbvateass 11

United States v. Fioravanti, 412 F.2d 407 (3d

Ee OED wisnnickicecnencodtiteadecacaes dncipronenniaGauaarenen 19

United States v. Lee, 317 F.3d 26 (1st Cir. 2003)........... 16

United States v. Norton, 867 F.2d 1354

Bp ER ERE RC Eis nen eee ee 11

United States v. O’Brien, 609 F.2d 895 (8th Cir.

lt ie kt dace lhc asec es anid aaa Neca aad 11

United States v. Paniagua-Ramos, 135 F.3d 193

Ce awd 19

United States v. Thomas, 449 F.2d 1177 (D.C.

a i i aa carat 19

Williams v. Florida, 399 U.S. 78 (1970)..............0.008 3, 13

Inve Winship, 397 U.S. 358 (1970)...........ssssccssseases pass7m

STATE CASES

Blackwood v. State, 627 S.E.2d 907 (Ga. Ct. App.

UN hi icprichbissstesshs tens acntsehiieadhchcan ha mveniepacibincsedhihiemashtsibiae 11

Commonwealth v. Rodriquez, 300 N.E.2d 192

2 Skane SE IR ant Pon at Ib Vea aR eee 20

Commonwealth v. Spencer, 275 A.2d 299 (Pa.

Ba peclitecas aisha stich ci adovnlets sashes ely sh cache aseiesiabbced 20

Fairley v. State, 467 So. 2d 894 (Miss. 1985) ................. 11

Fields v. State, 487 P.2d 831 (Alaska 1971).....00....0000000.. 20

Gearlson v. State, 482 So. 2d 1141 (Miss.1986).............. 20

Goodmuth v. State, 490 A.2d 682 (Md. 1985)..........0.... 20

Hoskins v. State, 552 P.2d 342 (Wyo. 1976)................... 20

Kersey v. State, 525 S.W.2d 139 (Tenn. 1975)................ 20

Lewis v. State, 424 N.E.2d 107 (Ind. 1981).....0.000.... 20

People v. Gainer, 566 P.2d 997 (Cal. 1977) «0.0... eee 20

People v. Prim, 289 N.E.2d 601 (Ill. 1972) ......... eee 20

People v. Sullivan, 220 N.W.2d 441 (Mich. 1974) .......... 20

Quarles v. State, 2338 N.W.2d 401 (Wis. 1975)................ 20

State v. Czachor, 413 A.2d 593 (N.J. 1980)... 20

State v. Fajardo, 699 P.2d 20 (Haw. 1985)... eee 20

State v. Ferguson, 175 N.W.2d 57 (S.D. 1970) ............... 20

State v. Flint, 761 P.2d 1158 (Idaho 1988) .....0.....0...... 20

State v. Garza, 176 N.W.2d 664 (Neb. 1970) ................. 20

State v. Howard, 537 N.E.2d 188 (Ohio 1989)................ 20

State v. Martin, 211 N.W.2d 765 (Minn. 1978)............... 20

State v. Nicholson, 315 So. 2d 639 (La. 1975).......000000.... 20

State v. Patriarca, 308 A.2d 300 (R.I. 1973) ............. ee 20

State v. Perry, 306 A.2d 110 (Vt. 1973)..............ccccccsececess 20

State v. Randall, 353 P.2d 1054 (Mont. 1960)................. 20

State v. Thomas, 342 P.2d 197 (Ariz. 1959)... 20

State v. White, 285 A.2d 832 (Me. 1972) .............ecceseeeeees 20

Taylor v. People, 490 P.2d 292 (Colo. 1971)................... 20

Wilson v. United States, 419 A.2d 353 (D.C. 1980)........ 1]

Winters v. United States, 317 A.2d 530 (D.C.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

ee | 18

ie: OE ae em Eee 1

een I Ec caclasliguenananeuoanieneebiue 1

a es A WE CET i on sicvavenvesssennsqnvedbecounlenceen 2

Be Or ey Bre I, FI ci ssicdaciescacacwwiviaccentcvtveovonntcnses 17

OTHER AUTHORITIES

American Bar Association, Principles for Juries

UE AUT TIE CID sinsinvcrcsenscvasccsnticcsnncsecseses 10, 20, 21

Dennis J. Devine et al., Jury Decision Making:

45 Years of Empirical Research on

Deliberating Groups, 7 Psychol. Pub. Pol’y &

iE CANUTE F soibnecsidiicdankehinlintan evideisbenshanadsinioiidsenns 13, 20

Kim Taylor-Thompson, Empty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1261 (2000).......... 14

Reid Hastie et al., INSIDE THE JURY (Harv. Univ.

a tea 13

Shari Seidman Diamond et al., Revisiting the

Unanimity Requirement: The Behavior of

the Non-Unanimous Civil Jury, 100 Nw. U.

he a Me SI aac Sen aareinds steer celta sb ciescasnntweswieess 14

Valerie P. Hans, The Power of Twelve: The

Impact of Jury Size and Unanimity on Civil

Jury Decision Making, 4 Del. L. Rev. 1

NUNIT shai vaceiak trea biased, tec iaibade abanbe bvcctenticessnevoweslian 14

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (““NACDL”) is a non-profit organization with

more than 12,800 direct members worldwide and 94

state, local, and international affiliate organizations with

another 35,000 members - including private criminal

defense lawyers, public defenders, active U.S. military

defense counsel, law professors and judges committed to

preserving fairness within America’s criminal justice

system. NACDL’s mission is to ensure justice and due

process for the accused; to foster the integrity,

independence, and expertise of the criminal defense

profession; and to promote the fair and proper

administration of criminal justice. '

Few protections are of more “surpassing

importance” than the proscription against any

deprivation of liberty without due process of law and the

guarantee that in all criminal prosecutions, the accused

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

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

476-77 (2000); U.S. Const. amends. XIV, VI. This Court

has recently reaffirmed not only that “the historical

foundation for our recognition of these principles

‘ Pursuant to this Court’s Rule 37, amicus states that no counsel

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

or entity other than amicus made a monetary contribution to the

preparation or submission of the brief. Counsel of record for all

parties were timely notified at least ten days prior to filing and have

consented to the filing of this brief. A letter of consent executed by

Respondent has been filed with the Clerk of the Court and counsel

for Petitioner has filed a global consent.

2

extends down centuries into the common law,” but also

that these protections were instituted principally ‘to

guard against a spirit of oppression and tyranny on the

part of rulers” and stands “as the great bulwark of [our]

civil liberties and political liberties.” Apprendi, 530 U.S.

at 477 (citations omitted). Thus, “trial by jury has been

understood to require that ‘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... .” /d. (citing 4

W. Blackstone, Commentaries on the Laws of England

343 (1769)) (second emphasis added). “Equally well

founded is the companion right to have the jury verdict

based on proof beyond a reasonable doubt.” Td.

(emphasis added).

The Louisiana statute at issue here provides that in

cases where a defendant is charged with a non-capital

offense for which the punishment may be “confinement

at hard labor,” the State need only persuade ten of

twelve jurors to vote guilty in order to secure a

conviction. La. C. Cr. P. art. 782 (2008). This statute,

which purports to find constitutional refuge in the

Court’s deeply fractured 4-1-4 opinion in Apodaca v.

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

constitutionality of a state statute providing for criminal

convictions on the basis of 9-3 jury verdicts), severely

diminishes the protections afforded the criminally

accused by the right to jury trial and the reasonable

doubt standard.

NACDL is in agreement with Petitioner that the

Sixth and Fourteenth Amendments prohibit the States

from securing criminal convictions on the basis of

anything less than a unanimous jury verdict. NACDI.

submits that the fractured opinion in Apodaca is neither

3

sufficiently ciear nor sufficiently consonant with

intervening opinions of the Court to stand any longer as

this Court’s ruling on the issue. NACDL respectfully

submits that the Court should reaffirm the traditional

meaning of the Sixth and Fourteenth Amendments in

declaring that Louisiana’s non-unanimity rule is

unconstitutional.

SUMMARY OF ARGUMENT

Developments in the Court’s Sixth and Fourteenth

Amendment jurisprudence in the wake of Apodaca, the

~ weight of the empirical research conducted in response

to Apodaca, and the experiences of various trial courts

all present compelling grounds for a critical re-

examination and abandonment of Apodaca as endorsing

an unconstitutional abrogation of the rights to due

process and a fair trial by jury. Accordingly, the

NACDL respectfully submits that the Court should

grant the petition and reject Apodaca.

REASONS FOR GRANTING THE PETITION

This Court has recognized that “{its] decisions

interpreting the Sixth Amendment are always subject to

reconsideration.” Duncan v. Louisiana, 391 U.S. 145,

158 n.30 (1968); see also Willaams v. Florida, 399 U.S.

78, 107 (1970) (Black, J., concurring in part and

dissenting in part) (recognizing the Court’s “duty to re-

examine prior decisions to reach the correct

constitutional meaning in each case”); Petition For Writ

of Certiorari at 18-21. Here, where a prior decision of

the Court is so misaligned with the historical

underpinnings and constitutional stature of the right at

issue — specifically, the right of a defendant to be free

from conviction except by proof sufficient to convince a

jury of defendant’s guilt “beyond a reasonable doubt” —-

4

the necessary pre-conditions for such a critical re-

examination plainly exist.

Petitioner’s brief in support of granting certiorari

thoroughly canvases the fractured nature of the Court’s

decision in Apodaca. Amicus NACDL will not retread

the same ground here. Instead, NACDL seeks to

demonstrate the lack of any sound basis for the Court’s

decision in Apodace — in what was an apparent detour

from settled principles and established practice — and

the practical consequences for the criminally accused of

the continued vitality of Apodaca.

I. The Louisiana Statute, As Endorsed By

Apodaca and Johnson, Runs Counter To

The Historically Recognized Constitutional

Protections Of Trial By Jury And The

Reasonable Doubt Standard.

This Court has expressly held that “[bJecause .. .

trial by jury in criminal cases is fundamental to the

American scheme of justice, . . . the Fourteenth

Amendment guarantees a right of jury trial in all

criminal cases which — were they to be tried in a federal

court — would come within the Sixth Amendment’s

guarantee.” Duncan, 391 U.S. at 149. The right to trial

by jury is historically entrenched, pre-dating the writing

of the United States Constitution, having been brought

to this country by those who emigrated from Fingland

““as their birthright and inheritance, as a part of that

admirable common law which had fenced around and

interposed barriers on every side against the approaches

of arbitrary power.” Jd. at 154 (citations omitted).

Fearing unchecked power, the framers of _ the

Constitution insisted upon community participation in

the determination of guilt or innocence of the accused,

and by guaranteeing the accused a right to trial by jury,

5

provided him with “an inestimable safeguard against the

corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge.” Jd. at 156.

Just two years after deciding Duncan, the Court

explicitly held that the Due Process Clause of the

Fourteenth Amendment protects the criminally accused

against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime with which he is charged. Jn re Winship, 397

U.S. 358, 364 (1970). The Winship Court reasoned that

the historic pedigree of the heightened standard of proof

in criminal cases and the virtually unanimous adherence

to the reasonable doubt standard in common law

jurisdictions “‘reflect[ed] a profound judgment about the

way in which the law should be enforced and justice

administered.” Jd. at 361-62 (quoting Duncan, 391 U.S.

at 155). Because the criminally accused has an interest

of “immense importance” and “transcending value” in

his liberty and reputation at stake, the margin of error

that exists in all litigation must be reduced as to the

defendant by placing on the prosecution the burden of

persuading the factfinder of his guilt beyond a

reasonable doubt. /d. at 363-64. As the Court explained:

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 avout his ordinary affairs have

confidence that his government cannot adjudge

him guilty of a criminal offense without

6

convincing a proper factfinder of his guilt with

utmost certainty.

Id. at 364.

In both Apodaca and its companion case, Johnson v.

Louisiana, 406 U.S. 356, 359 (1972), Petitioners argued

that the failure to require unanimous verdicts in state

criminal cases undermined the reasonable doubt

standard. In Apodaca, Petitioners argued that the right

to a jury trial provided by the Sixth Amendment and

made mandatory on the states by virtue of the

Fourteenth Amendment, see Duncan v. Louisiana, 391

U.S. at 145, carries with it a requirement that the

prosecution must prove the accused guilty beyond a

reasonable doubt, and, according to the Petitioners, a

unanimous verdict is required to give substance to that

standard. 406 U.S. at 406. Despite the obvious

interrelationship between the right to a trial by jury and

the right to be free from conviction except by proof of

guilt beyond a reasonable doubt, Justice White and

three other justices in Apodaca posited that “the Sixth

Amendment does not require proof beyond a reasonable

doubt at all.” /d. at 412 (White, J.).

In Johnson, Petitioner was foreclosed from raising a

Sixth Amendment argument, but instead argued that

the Due Process Clause of the Fourteenth Amendment

mandated a reasonable doubt standard, see Winship,

397 U.S. at 363-64, and that, under the Due Process and

Equal Protection clauses, such a standard muust be

construed to require a unanimous jury verdict. 406 U.S.

7

at 358-59.” The Court rejected the argument that a

unanimous jury verdict was required in all criminal

eases. Jd. at 359. More specifically, the Johnson

majority held that “the fact of three dissenting votes to

acquit raises no question of constitutional substance

about either the integrity or the accuracy of the majority

verdict of guilt.” Jd. at 360.

With admittedly little empirical or evidentiary

support other than its own hunches and assumptions,

the majority in Johnson rejected any notion that upon

reaching the quorum necessary to convict, the majority

jurors might simply cut short deliberations and ignore

the reasonable doubts of their colleagues. Jd. at 360-61.

The Court concluded that before it would alter its own

perceptions about jury behavior and overturn a

legislative judgment that unanimity is not essential to

reasoned jury verdicts, “we must have some basis for

doing so other than unsupported assumptions.” Jd. at

361-62; compare with id. at 389-90 (Douglas, J.,

dissenting) (“I fail to understand why the Court should

lift from the States the burden of justifying so radical a

departure from an accepted and applauded tradition and

instead demand that these defendants document with

empirical evidence what has always been thought to be

too obvious for further study.”).

Recent developments in the Court’s Sixth and

Fourteenth Amendment jurisprudence, as well as the

now substantial body of empirical evidence regarding

* Petitioner in Johnson conceded that Duncan, which held that

the Sixth Amendment guaranty of jury trial was applicable to the

States, did not apply to his case because his trial occurred before

Duncan was decided. Johnson, 406 U.S. at 358-59.

8

juror perceptions and behavior, demonstrate that both

the common-law originalist conception of the rights at

issue and the functional, reliability-based conception of

those rights confirm the need to revisit the Court’s

rulings in Apodaca and Johnson.

Within a very few years after Apodaca and Johnson

were decided, the Court began to re-examine the

foundation of those decisions. In Burch v. Louisiana,

441 U.S. 180, 188 (1979), for example, the Court held

that conviction by a non-unanimous six-person jury in a

Louisiana criminal trial for a non-petty offense violated

the Sixth Amendment right of the defendant to a trial by

jury. The Burch Court buttressed its determination by

looking to the current jury practices of the several

States:

[i]t appears that of those States that utilize six-

member juries in trials of nonpetty offenses,

only two, including Louisiana, also allow

nonunanimous verdicts. We think that this

near-uniform judgment of the Nation provides a

useful guide in delimiting the line between those

jury practices that are _ constitutionally

permissible and those that are not.

Id. (citations omitted). Burch effectively rejected the

subjective analysis embraced by Apodaca and Johnson

and employed the “useful guide” that its predecessors

eschewed.

More recently, the Court rejected the Apodaca

plurality’s premise that the reasonable doubt standard

was untethered to the Sixth Amendment right to trial by

jury. In Sullivan v. Louisiana, 508 U.S. 275, 278 (1993),

this Court unanimously held:

9

[ijt is self-evident, we think, that the Fifth

Amendment requirement of proof beyond a

reasonable doubt and the Sixth Amendment

requirement of a jury verdict are interrelated.

It would not satisfy the Sixth Amendment to

have a jury determine that the defendant is

probably guilty, and then leave it up to the

judge to determine (as Winship requires)

whether he is guilty beyond a reasonable doubt.

In other words, the yury verdict required by the

Sixth Amendment is a jury verdict of gualty

beyond a reasonable doubt.

Id. at 278 (second emphasis added). The Court

concluded that by providing the jury with a faulty

“reasonable doubt” definition during the instruction

stage, the trial court denied defendant the right to a jury

verdict of guilt beyond a reasonable doubt. /d. at 281.

That deprivation amounted to “structural error,” the

Court concluded, “the jury guarantee being a ‘basic

protectio{n]’ whose precise effects are unmeasurable,

but without which a criminal trial cannot reliably serve

its function.” Jd. at 281-82; see also Cunningham v.

California, 549 U.S. 270, __; 127 S. Ct. 856, 863-64

(2007) (applying the Apprendi rule to a state sentencing

system and explaining 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” (emphasis

added)). Under the original common law conception, the

right to trial by jury includes the right to be convicted

only upon proof beyond a reasonable doubt.

10

II. A Substantial Body Of Post-Apodaca Case

Law Demonstrates That The Court’s

Assumptions And Hunches Regarding

Jury Behavior Were Flawed.

A growing body of case law demonstrates that the

unanimity requirement provides the greatest assurance

that the jury will fulfill its indispensible role in the

criminal justice system and undercuts the hunches and

assumptions relied upon by the plurality in Apodaca and

the majority in Johnson, who determined that unanimity

is not essential to the reasonable doubt standard.’ For

example, the more recent experiences of several courts

from jurisdictions where the unanimity requirement is in

force refute the Johnson Court’s presumption that

robust jury discussion and a thorough debate of the facts

would not suffer as a result of a majority decision rule.

See Johnson, 406 U.S. at 361 (concluding that the Court

had “no grounds for believing that majority jurors,

aware of their responsibility and power over the liberty

3 Notably, Justice Powell’s concurrence respecting Apodaca

relied, at least in part, on his observation that “[l]ess-than-

unanimous verdict provisions ... have been viewed with approval by

the American Bar Association’s Criminal Justice Project.” 406 U.S.

at 377. In connection with the more recently conducted American

Jury Project, the American Bar Association (ABA), which NACDL

understands will file a brief amicus cariae in support of Petitioner

in this case, recently published and released its Principles for Juries

and Jury Trials, available at http:/www.abanet.org/jury/pdf/

final%20 commentary_july_1205.pdf (last accessed July 3, 2008).

Based upon a comprehensive review of the empirical research

conducted over the past half-century, the ABA now recommends

that, in accord with the established practice in federal criminal

trials, “a unanimous verdict should be required in all criminal cases

heard by a jury.” Jd. at 23-26 (Principle 4.B).

11

of the defendant, would simply refuse to listen to

arguments presented to them in favor of acquittal,

terminate discussion, and render a verdict,” but instead

posited that a “juror presenting reasoned argument in

favor of acquittal would either have his arguments

answered or would carry enough other jurors with him

to prevent conviction”).

These recent cases reveal that dissenting jurors

frequently seek escape from deliberations rather than

confront their peers or cast a vote against their

consciences. See, e.g., Early v. Packer, 537 U.S. 3, 4-6

(2002) (dissenting juror twice asked to be dismissed

from jury rather than continue deliberations); United

States v. Dorsey, 865 F.2d 1275, 1277 (D.C. Cir. 1989)

(dissenting juror asked to be exchanged with alternate

because she felt she would be “lying to myself to change

my verdict just to have a unanimous decision”); Unzted

States v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989)

(juror asked to be replaced because he entertained

doubt as to defendant’s guilt while majority did not);

United States v. O’Brien, 609 F.2d 895, 896 (8th Cir.

1979) (juror asked to be removed from jury, explaining

“my decision would not be fair to the U.S. people or to

the defendant”); Blackwood v. State, 627 S.E.2d 907,

911-12 (Ga. Ct. App. 2006) Guror asked to be excused

because she was the “only one with a different decision”

and “wouldn’t feel good tonight if I said he was guilty”);

Fairley v. State, 467 So. 2d 894, 900 (Miss. 1985) Guror

sought to k= excused because he reached a decision that

he felt would not be reached by the rest of the jury);

Wilson v. United States, 419 A.2d 353, 355 (D.C. 1980)

(juror left deliberations, and after being directed to

12

return, asked to be excused because she was the “only

hold up”).* If dissenting jurors are willing to seek

escape in unanimity jurisdictions, it only stands to

reason that these same jurors, when sitting on juries in

non-unanimity jurisdictions, would silently accept the

decision of the majority rather than force a discussion of

the charges. °

It is difficult for the average layperson — frequently

not skilled in the arts of rhetoric or advocacy - to

marshal his argumentative skills to defend his dissenting

view or sway others to his side. Juries are rarely

composed of Ciceros, Websters and Douglasses. A

dissenting juror who knows the decision is foretold once

a ten-juror quorum is achieved has little motivation to

challenge the judgment of his peers; as a result, he

commands less attention from the majority. When

unanimity is required, however, the full benefits of the

jury system reveal themselves. Not only must the

dissenter attempt to persuade his peers, but the

majority must also persuade the dissenter. Such a

system necessarily requires a robust and probing

discussion of the case.

When a juror has a deciding vote, it is then that

percolations of doubt are given voice. See, e.g., Karly,

537 U.S. at 4-5 (upon polling of the jury, juror revealed

“ In each of these cases, the jury eventually convicted the

defendant. However, it is impossible to know how many similar

situations resulted in a hung jury, as these are unlikely to appear in

published decisions.

° In the unanimity cases, jurors who have reservations about

forcing a debate are more readily identified and instructed by the

Court on their civic duty — an opportunity that may be lost in non-

unanimity jurisdictions.

13

dissent with verdict); Jn re Hoare, 155 F.3d 937, 939 (Sth

Cir. 1998) (juror refused to affirm guilty verdict when

polled). In non-unanimity jurisdictions, a juror with

doubts may remain silent, morally secure that it is not

his vote that is convicting the accused; no such luxury is

available where unanimity is required. “(T]he 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, and in the

community participation and shared responsibility

that results from that group’s determination of guilt or

innocence.” Williams v. Florida, 399 U.S. 78, 100 (1970)

(emphasis added). The best guarantee of true

community participation is the unanimity requirement.

II. Empirical Research On The Behavior Of

Juries Confirms The Wisdom Of The

Historical Unanimity Requirement.

The value of the unanimity requirement

demonstrated by the events documented in the post-

Apodaca jurisprudence is validated by a now substantial

body of empirical research. For example, research on

jury decision-making published between 1955 and 1999,

much of which was inspired by the Court’s decisions in

Apodaca and Johnson, concludes that juries not

required to reach a unanimous decision tend to take less

time to arrive at a verdict, take fewer polls, cease

deliberating when a quorum is reached, and report being

less satisfied and confident that the jury reached the

correct verdict. Dennis J. Devine et al., Jury Deciszon

Making: 45 Years of Empirical Research on

Deliberating Groups, 7 Psychol. Pub. Pol’y & L. 622, 669

(2001); see also Reid Hastie et al., INSIDE THE JURY 29-

32, 238 (Harv. Univ. Press 19838).

14

Recent studies have also found that, contrary to the

theories of non-unanimous jury system advocates, there

is no evidence that outvoted holdouts are irrational or

eccentric in ways that justify isolating them or failing to

seriously consider their views. Shari Seidman Diamond

et al., Revisiting the Unanimity Requirement: The

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

U.L. Rev. 201, 205-06 (2006) (also noting the scant

empirical evidence available to the Apodaca and

Johnson Courts and concluding that “the benefits of

unanimity outweigh its costs”). Further, the existing

research indicates that non-unanimous voting schemes

“are likely to chill participation by the precise groups

whose exclusion the Court has proscribed in other

contexts.”” Kim Taylor-Thompson, H’mpty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1261, 1310-12 (2000)

(also noting the limited empirical data available to the

Apodaca and Johnson Courts and concluding that in

light of the substantial evidence contradicting the

assumptions made by the Johnson majority and

Apodaca plurality, “a stubborn adherence to precedent

would be a perverse dynamic”); see also Valerie P. Hans,

The Power of Twelve: The Impact of Jury Size and

Unanimity on Civil Jury Decision Making, 4 Del. L.

Rev. 1 (2001) (“effects of eliminating unanimity tend to

mirror the effects of reduction in jury size by lessening

the strength of those arguing a minority position and by

undermining the quality and accuracy of jury decision

making”’).

NACDL submits that this compelling body of

empirical research confirms the wisdom of the unanimity

requirement established by our forefathers and reveals

the arbitrary nature of the Court’s departure, in

Apodaca and Johnson, from the Founders’ original

intent.

15

IV. The Louisiana Statute Dilutes The

Reasonable Doubt Standard “For

Defendants Accused Of Non-Capital

Crimes.

The distinction established by the Louisiana

Legislature — requiring unanimity in capital cases but

dispensing with the requirement in all other felony

cases, some of which may be punishable by life in prison

without parole, cannot be justified. In addressing the

Equal Protection arguments raised by the Petitioner in

Johnson, which involved a predecessor to the statute at

issue here, the Court acknowledged that the distinction

between the unanimity requirement for capital offenses

and the non-unanimity rule for crimes punishable by

hard labor or life in prison “obviously” reflected the

Louisiana Legislature’s “inten[tion] to vary the difficulty

of proving guilt with the gravity of the offense and the

severity of the punishment.” Johnson, 406 U.S. at 364-

65. But Louisiana has not made proving guilt in capital

cases more difficult. Rather, the Louisiana statute

merely diminishes the constitutional protections for

defendants charged with all other felony offenses by

diluting the reasonable doubt standard that must be met

in non-capital cases.° This reservation of full

® See, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1076-

77 (5th Cir. 1993) (“The unanimity rule is a corollai:y to the

reasonable-doubt standard, both conceived as a means of

guarantecing that each of the jurors ‘reach{]} a subjective state of

certitude’ with respect to a criminal defendant’s culpability before

rendering a conviction. . .. The requirement that all twelve jurors

be in agreement as to a defendant’s guilt is employed to give

substance to the reasonable-doubt standard; if.a verdict is less than

unanimous, the dissension tends to show that a reasonable dowbt

16

constitutional protection in Louisiana only for those

cases in which the most severe punishment is a

possibility may be efficient for Louisiana law

enforcement authorities and prosecutors, but it fails to

offer defendants faced with life imprisonment the full

panoply of constitutional protections secured by the

Sixth and Fourteenth Amendments.

Louisiana’s statute also fails to offer those who

participate on Louisiana juries full confidence that their

views — as well as their votes — will count equally with

those of their peers. A unanimity requirement allows

each juror to have equal power — in essence a veto — as to

the question at hand. A majority requirement quickly

determines whose views must be subordinate and may

be discounted entirely, or worse, affirmatively silenced

on the ground that such an airing is a waste of the

majority’s time. While Louisiana may perceive

substantial efficiencies that might be achieved through

the use of non-unanimous juries — e.g., reduction in the

time and expense associated with the administration of

its system of criminal justice — those interests, which are

speculative at best, must give way to the constitutional

guarantee that no person shall be convicted of a crime on

the basis of anything less than proof of guilt beyond a

reasonable doubt. See Burch v. Louisiana, 441 U.S. 180,

exists as to the criminal activity charged.”) (citations omitted)

(emphasis added); United States v. Lee, 317 F.3d 26, 36 (1st Cir.

2003) (“(T]he unanimity requirement ... helps to ensure that no

defendant will be convicted unless the government has carried its

burden of proving guilt beyond a reasonable doubt... . /LJeaving

jurors free to convict despite disagreements about critical facts will

imperil the integrity of the reasonable doubt standard.) (emphasis

added).

17

138-39 (1979). The Louisiana majority-vote conviction

scheme falls short of maintaining the confidence of every

individual in our free society that “his government

cannot adjudge him guilty of a criminal] offense without

convincing a proper factfinder of his guilt with utmost

certainty.” Winship, 397 U.S. at 364. The continued

allowance for such schemes and the concomitant erosion

of the reasonable doubt standard dilute the moral force

of the criminal law such that people may well be left in

doubt “whether innocent men are being condemned.”

Ia.

V. The Majority-Verdict Scheme Severely

Disadvantages Defendants During Jury

Selection.

In the most practical sense, the Louisiana statute

requires the defense to create a doubt in the minds of

three jurors, not in order to prevail, but merely to hang

the jury. One point in the criminal trial process where

allowance for non-unanimous convictions undermines

defense strategy is in the exercise of peremptory

challenges. A defendant in a non-capital case in

Louisiana is afforded only twelve peremptory

challenges. La. C. Cr. P. art. 799 (2008). ‘This is

woefully inadequate where defense counsel must create

doubt in the minds of 25% of the jury merely to avoid

conviction and obtain a re-trial.

The peremptory challenge is one of the oldest

established rights of the criminal defendant. See, e.g.,

Lewis v. United States, 146 U.S. 370, 376 (1892). The

importance of this right is evidenced by the remedy

courts have afforded defendants deprived of the right —

reversal of conviction even without proof of prejudice.

Id. at 376. The principal purpose of the peremptory

challenge is to enable a litigant to remove a potential

18

juror in whom the litigant perceives bias or hostility.

Swain v. Alabama, 380 U.S. 202, 212 (1965), overruled

on other grounds by Batson v. Kentucky, 476 US. 79

(1986). The effective exercise of this right is especially

important in circumstances where counsel finds it

necessary to conduct vigorous questioning of prospective

jurors to expose possible causes for challenge.

In cases where conviction may result upon a non-

unanimous verdict, defense counsel has a duty to be

especially vigorous in her efforts to expose bias, hostility

and indifference in prospective jurors. Under federal

law, in non-capital felony cases, it is recognized that a

defendant should be allotted ten peremptory challenges

to accomplish this objective, in circumstances where a

single dissenting vote will permit the defendant to avoid

conviction. Fed. R. Crim. P. 24 (b)(2) (2008). Where,

however, a defendant must persuade three jurors in

order to avoid conviction, and defense counsel must

ferret out not only those prospective jurors who may be

biased or hostile, but also those of weak will who cannot

take or vocalize an unpopular stance, the importance of

having an adequate number of peremptory challenges is

much more pronounced. The allotment to defendants in

Louisiana of a mere twelve peremptory challenges, while

permitting conviction upon a vote of only ten jurors, tilts

the field dramatically in favor of the government.

VI. Allowing Conviction On The Basis Of

Non-Unanimous Juries Is_ Inherently

Coercive And Discourages Juror Dissent.

A jury instruction approving a 10-2 or 11-1 verdict

essentially admonishes a dissenting juror that his view

of the evidence is likely inaccurate, and that his theory of

the case is entitled to no deference. Indeed, such an

instruction is the equivalent of admonishing the jury

19

that “a ‘dissenting juror should consider whether his

doubt was a reasonable one . . . [when it made] no

impression upon the minds of so many men, equally

honest, equally intelligent with himself.”” Johnson, 406

U.S. at 361-62 (quoting Allen v. United States, 164 U.S.

492, 501 (1896)) (alteration in the original). Notably, the

dangers of such an explicit suggestion have been

recognized by the many courts of appeal that have

employed their supervisory powers to rewrite the Allen

instruction to remove the coercive sting that it inflicts on

dissenting voices. See, e.g., United States v. Paniagua

Ramos, 135 F.3d 198, 197 (1st Cir. 1998) (stating that

Allen instruction must tell members of both the majority

and the minority to reexamine their positions); United

States v. Burgos, 55 F.3d 933, 936 (4th Cir. 1995)

(recognizing that “[{i]n the traditional Allen charge, one

of the most likely sources of coercion is rooted in the

court’s admonition to the jury that members of the

minority reconsider the position taken by those in the

majority”); United States v. Thomas, 449 F.2d 1177,

1187 (D.C. Cir. 1971) (en banc) (rejecting the Allen

charge and adopting the ABA instruction); United

States v. Fioravanti, 412 F.2d 407, 417 (8d Cir. 1969)

(holding instruction that a juror should “distrust his own

judgment if he finds a large majority of the jurors taking

a view different from his” is reversible error); United

States v. Brown, 411 F.2d 930, 933-34 (7th Cir. 1961)

(rejecting Allen charge in future cases and adopting the

ABA instruction).’

Not surprisingly, empirical research has revealed

that this tilting of the field on which jury trials are

conducted in favor of the government has a measurable

impact on the number of hung juries. Juries not

required to be unanimous tend to hang less often. See

Devine, supra 13, at 669; ABA Principles, supra note 3,

at 25 (survey of trial judges found that, where

The majority of states have also cither completely rejected the

traditional, one-sided Allen charge, State v. Thomas, 342 P.2d 197,

200 (Ariz. 1959); Taylor v. People, 490 P.2d 292, 295 (Colo. 1971);

State v. Fajardo, 699 P.2d 20, 25 (Haw. 1985); State v. Flint, 761

P.2d 1158, 1164 (Idaho 1988); State v. Randall, 353 P.2d 1054, 1058

(Mont. 1960); State v. Howard, 537 N.E.2d 188, 192 (Ohio 1989);

State v. Ferguson, 175 N.W.2d 57, 61 (S.D. 1970); or have replaced

the traditional charge with language more balanced and salutary to

the minority. Fields v. State, 487 P.2d 831, 842 (Alaska 1971)

(Alaska 1987) (rejecting Allen charge in favor of ABA Standards

Relating to Trial by Jury (1968) § 5.4, pp. 145-46 (approved draft)

(predecessor to 3 ABA, Standards for Criminal Justice, Standard

15-4.4 (2d Eid. 1980)); People v. Gainer, 566 P.2d 997, 1005-09 (Cal.

1977); Winters v. United States, 317 A.2d 530, 533 (D.C. 1974);

People v. Prim, 289 N.E.2d 601, 609-10 (Ill. 1972); Lewis v. State,

424 N.E.2d 107, 110-11 (Ind. 1981); State v. Nicholson, 315 So. 2d

639, 641, 643 (La. 1975); State v. White, 285 A.2d 832, 888 (Me.

1972); Goodmuth v. State, 490 A.2d 682, 687 (Md. 1985);

Commonwealth v. Rodriquez, 300 N.E.2d 192, 200-02 (Mass. 1973);

People v. Sullivan, 220 N.W.2d 441, 450 (Mich. 1974); State wv.

Martin, 211 N.W.2d 765, 771 (Minn. 1973); Gearlson v. State, 482

So.2d 1141, 1143 (Miss.1986); State wv. Garza, 176 N.W.2d 664,

666 (Neb. 1970); State v. Czachor, 413 A.2d 593, 597-98 (N.J. 1980);

Commonwealth v. Spencer, 275 A.2d 299, 303-04 (Pa. 1971); State v.

Patriarca, 308 A.2d 300, 322-23 (R.I. 1973); Kersey v. State, 525

S.W.2d 139, 144 (Tenn. 1975); State v. Perry, 306 A.2d 110, 112 (Vt.

1973); Quarles v. State, 233 N.W.2d 401, 402 (Wis. 1975); Hoskins v.

State, 552 P.2d 342, 347 n.8 (Wyo. 1976).

21

unanimous verdicts were required, 5.6% of juries ended

in deadlock, compared with 3.1% where majority

verdicts were permitted) (citing Harry Kalven & Hans

Zeisel, THE AMERICAN JURY 463 (1966)). Although the

differentials are obviously not pronounced, they do

suggest that in a small number of cases, the accused

would have fared better under a system requiring

unanimity, as opposed to one employing a majority

decision rule. See Johnson, 406 U.S. at 390 (Douglas, J.,

dissenting). This is especially true given that only one-

third of the cases resulting in hung juries are re-tried;

half are disposed of by plea agreements or dismissals.

ABA Principles, supra note 3, at 25 (citing Paula L.

Hannaford-Agor et al., ARE HUNG JURIES A PROBLEM?

67 (2002)). In all events, however small the differentials

may be, to tilt the scale to any degree in favor of the

government undermines the “fundamental value

determination of our society that it is far worse to

convict an innocent man than to let a guilty man go

free.” Winship, 397 U.S. at 1077 (Harlan, J.,

concurring). Where that sacrifice must be borne by the

criminally accused so that the State may pursue

interests that are “speculative, at best,” these

governmental interests must give way to the public’s

interest in the reliability and accuracy of the jury

system. Burch, 441 US. at 139.

Finally, the abandonment of unanimity almost

certainly adversely impacts the defense of the criminally

accused in ways that have not yet been studied or

analyzed. For example, it seems almost a truism that in

states that allow for conviction by non-unanimous juries,

the percentage of criminal defendants who enter into

plea bargains, rather than go to trial against a

prosecutor unencumbered by the constitutionally

heightened burden of proof, will be markedly higher

22

than in those states where the unanimity requirement is

employed to give substance to the reasonable doubt

standard. In sum, statutes permitting non-unanimous

guilty verdicts create both practical and legal

impediments that unfairly increase the likelihood of

conviction.

CONCLUSION

For all the reasons state above, the Court should

grant the petition.

Respectfully submitted,

s/ Charles S. Leeper

JEFFREY T. GREEN CHARLES S. LEEPER

SIDLEY AUSTIN LLP Counsel of Record

1501 K Street, N.W. MICHAEL R. MINER

Washington, D.C. 20005 MARK H. M. SOSNOWSKY

(202) 736-8000 DRINKER BIDDLE

& REATH LLP

1500 K Street, N.W.

Washington, DC 20005

(202) 842-8800

July 7, 2008