The Unanimous Jury Issue

This wikilog article is a draft, it was not published yet.

by: Abassos • January 6, 2011 • no comments

In anticipation of the S.Ct. conference today to decide whether to grant Certiorari on the unanimous jury issue, I've gathered everything in one place:

The Expert:

Bronson James on Unanimous Juries from Alex Bassos on Vimeo.

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The Trial Memo:

The following is a modified version of an appellate brief that Bronson James filed with an additional argument written by research student Dan Hubner, here from NYU.

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The Argument:

The essence of the unanimous jury argument is succinctly set forth in Eugene Volokh's cert stage reply brief:

1. As [the Supreme] Court has repeatedly stated, the Jury Trial Clause requires unanimous convictions in federal criminal cases.
2. As [the Supreme] Court concluded in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), incorporated Bill of Rights provisions apply to States the same way they apply to the Federal Government.
3. Therefore, state criminal convictions must be unanimous as well, and stare decisis does not preclude this Court from so holding, despite the contrary, badly splintered decision in Apodaca v. Oregon, 406 U.S. 404 (1972).

Preservation

When making your argument you should cite the 6th Amendment and the 14th Amendment to the U.S. Constitution and mention the U.S. Supreme Court Cases of Apodaca v. Oregon and McDonald v. City of Chicago by name.

According to Bronson you should take five separate steps to fully preserve the issue, in addition to filing the memo:

1. Move for a special jury instruction.
2. Object to the standard jury instruction
3. Except to the standard jury instruction after the instructions are read
4. Poll the jury and object at that time to the court's receipt of a non-unanimous verdict.
5. Object to the trial court's entry of judgement.

It's very important to take each of these steps. A number of good appellate cases have been unpreserved because, for example, the attorney failed to except to the lack of an instruction after the instructions were read. The issues were unpreserved even though the attorneys had filed motions and briefs and fully argued the issue.

The Supreme Court Petitions and Briefs:

Here's the cert application to the Supreme Court on Herrera, a non-unanimous case out of MPD, preserved and set up nicely by DeAnna Horne, appealed and managed by Bear Wilner-Nugent and filed in the Supreme Court by conservative blogger and law professor Eugene Volokh. Here are the other briefs that have been filed:

1. The state's Brief in Opposition.
2. Eugen Volokh's reply brief.
3. The amicus brief of professors who have written about jury behavior.
4. The amicus brief of Prof. Jeffrey B. Abramson (Texas).
5. The amicus brief of Oregon professors of criminal law and criminal procedure.
6. The amicus brief of the Oregon Federal Public Defender.
7. The amicus brief of Prof. Kate Stith (Yale).
8. The amicus brief of the Lousiana Association of Criminal Defense Lawyers.

The State Argument:

If you read [Jess Barton's article] in this month's Oregon Defense Attorney, the OCDLA newsletter, you already know about this argument as well:

"The state law claim is grounded on the fact that Ballot Measure 302-03 (1934), which amended Article I, section 11, to authorize nonunanimous juries, also authorized and regulated jury waivers. Because the measure carried two constitutional amendments, it implicates the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. The 'separate vote requirement, which applies to constitutional amendments proposed by initiative, as well as those proposed by the legislature,' provides: 'When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.' The requirement prohibits placing more than one 'substantive' constitutional amendment before the voters in a single ballot measure, unless the multiple amendments are 'closely related.'" "Although the amendments address the same section of the same article and involve jury trials, they 'involve separate constitutional rights, granted to [two] different groups of persons.' Moreover, those two different groups want polar opposite things, specifically:

1. Persons who wish to waive their right to jury trials as a means of obtaining a fair trial.
2. Persons who, for the same reason, wish to assert their right to jury trials."