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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0980%3A8

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0980%3A8. Public record. Not legal advice.