Conference Call: Do Guilty Verdicts Have to Be Unanimous?
on Sep 29, 2008 at 11:35 am
The following column, featuring a selected petition up for consideration at the Justicesâ€™ opening conference, appears in todayâ€™s edition of Legal Times (available to subscribers here). To see the full list of â€œpetitions to watchâ€ for todayâ€™s conference, click here.
The Constitution grants defendants the right to a jury trial in all criminal cases. But when it comes to the details, the Framers were conspicuously silent.
While the Sixth Amendment requires that juries be locally drawn, it says nothing about how many members must serve, how they should be selected, or how convinced they must be to find a defendant guilty.
In its first conference of the upcoming term, the Supreme Court will consider whether to grant review in a case involving perhaps the most fundamental, and most widely assumed, aspect of jury trials: whether all members must unanimously agree to render a verdict. (The conference is scheduled for Sept. 29, and a decision is likely to be announced Sept. 30. The petition is No. 07-1523, Lee v. Louisiana.)
The justices have answered the question before, in a splintered decision in the early 1970s, holding that states could permit juries to convict or acquit defendants by as few as 10 votes. But in a naked appeal to overrule precedent, the petitionerâ€”accompanied by five amicus briefs, including one from the American Bar Associationâ€”asks the justices to restore a unanimity requirement that had previously extended back to the Middle Ages.
The defendant in the case, Derrick Todd Lee, was arrested in connection with the 2002 murder of Geralyn Desoto, a university student who, according to prosecutors, had allowed Lee in her home to use her phone. (Lee, dubbed the â€œBaton Rouge Serial Killer,â€ has been linked to the murders of six other women in southern Louisiana.)
A grand jury charged Lee with first-degree murder, a capital crime requiring unanimity for conviction. But shortly before trial, Louisiana amended the indictment to second-degree murderâ€”a noncapital crime that, under state law, requires the agreement of only 10 jurors to render a verdict. Following deliberations, the jury voted 11-1 to convict, and the judge sentenced Lee to life without parole.
On appeal, among other issues, Lee argued that the Constitution required a guilty verdict to be rendered unanimously. Applying the Supreme Courtâ€™s 1972 decision in Apodaca v. Oregon, an appeals court swiftly rejected the claim.
In a convoluted decision, four justices in Apodaca found the constitutional right to a jury trial mandated unanimous verdicts in both state and federal trials. Four justices found it did not. In the middle was Justice Lewis Powell Jr., who concluded that while criminal defendants were entitled to jury trials in both state and federal court, the unanimity requirement was not â€œincorporatedâ€ against, or applied to, the states.
Because Powell provided the fifth vote to affirm the defendantsâ€™ convictions, his views controlled. To this day, Oregon and Louisiana remain the only states that do not require unanimous verdicts in some criminal cases.
With the Court already having addressed the issue, Leeâ€™s petition for certiorariâ€”filed by Jeffrey Fisher, a law professor and director of the Stanford Supreme Court Litigation Clinicâ€”is devoted almost entirely to urging the justices to overrule Apodaca.
In his main line of argument, Fisher says more recent Sixth Amendment decisions undercut the rationale by which Apodaca was decided. Whereas the Apodaca plurality looked to the function juries serve in modern society, the petition contendsâ€”citing numerous cases Fisher himself arguedâ€”that the modern Court looks at practices as they existed when the Bill of Rights was adopted.
Fisher further points out that a line of cases beginning with Apprendi v. New Jersey (2000), which required juries to find any factorÂ that increased a defendantâ€™s sentence, have repeatedly quoted a passage from English commentator William Blackstone that all criminal accusations must be confirmed by the â€œunanimous suffrageâ€ of twelve jurors.
To overcome the Courtâ€™s adherence to stare decisisâ€”the principle of abiding by prior decisionsâ€”Lee argues that aside from Justice Powell, each of the other eight justices in Apodaca believed the unanimity requirement should apply equally to both state and federal trials. In the last thirty years, Fisher says, no justice has advanced Powellâ€™s theory of â€œpartial incorporation.â€
Because the unanimity requirement applied in jury trials for hundreds of years prior to the founding, the petition says the Court should be less reluctant to overrule decisions that themselves departed from longstanding practice.
Finally, Fisher says recent empirical studies cast doubt on the Apodaca assumption that unanimous juries were unnecessary to ensure adequate jury deliberation. For example, the petition explains, in one study of trials in Arizona (as recounted in the Northwestern Law Review), members of unanimous juries reported engaging in more thoughtful debate and fears of eccentric holdout jurors did not materialize.
Citing other studies, including a report by the American Bar Association, Fisher writes that â€œmembers of racial and ethnic minorities are often the ones who are outvoted in non-unanimous verdicts.â€
Opposing review, the state of Louisiana contends the petition fails to demonstrate any special need to overrule Apodaca. Filed by Chief Felony Prosecutor Antonio M. â€œTonyâ€ Clayton, the brief in opposition maintains that unlike the rights to counsel and cross-examination, which Fisher cited in the petition, jury unanimity is not mentioned in the Bill of Rights.
If the Court had intended to overrule a prior decision in the Apprendi line of cases, Clayton says, â€œit surely would have done something more than simply quote Blackstone.â€ (Disclosure: Howe & Russell is co-counsel on the petition in this case.) â€”Ben Winograd
Â© 2008 ALM Properties Inc.