Blog:Main/The Unanimous Jury Issue - Revision history

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===The Expert:===

<div class="media_embed">

[https://secure.vimeo.com/18518542 Bronson James on Unanimous Juries] from [https://secure.vimeo.com/user3764779 Alex Bassos] on [https://secure.vimeo.com Vimeo].

</div>

===
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.

* [[Unanimity2.doc|unanimity2]]

===The Argument:===

The essence of the unanimous jury argument is succinctly set forth in Eugene Volokh's [http://www.law.ucla.edu/volokh/herrerareply.pdf cert stage reply brief]:

<blockquote>

# ''As [the Supreme] Court has repeatedly stated, the Jury Trial Clause requires unanimous convictions in federal criminal cases.''

# ''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.''

# ''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).''

</blockquote>

===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:

# Move for a special jury instruction.
# Object to the standard jury instruction
# Except to the standard jury instruction after the instructions are read
# Poll the jury and object at that time to the court's receipt of a non-unanimous verdict.
# 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 [http://volokh.com/2010/12/14/my-non-unanimous-criminal-jury-case/ 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:

# The state's [http://www.law.ucla.edu/volokh/herrerabio.pdf Brief in Opposition].
# Eugen Volokh's [http://www.law.ucla.edu/volokh/herrerareply.pdf reply brief].
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusjuryresearchers.pdf amicus brief of professors who have written about jury behavior], Profs. Shari S. Diamond (Northwestern), Valerie P. Hans (Cornell), Kenneth S. Klein (Cal. Western), Stephan Landsman (DePaul), Michael J. Saks (Arizona State), Rita Simon (American), and Neil Vidmar (Duke).
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusabramson.pdf amicus brief of Prof. Jeffrey B. Abramson (Texas)], the author of We, the Jury: The Jury System and the Ideal of Democracy.
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusoregoncrimprofs.pdf amicus brief of Oregon professors of criminal law and criminal procedure], Dean Margie Paris (U of Oregon) and Profs. Barbara Aldave, Leslie Harris, Carrie Leonetti, and Ofer Raban (U of Oregon), Laura Appelman and Caroline L. Davidson (Willamette), and Susan Mandiberg (Lewis & Clark).
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusfpd.pdf amicus brief of the Oregon Federal Public Defender].
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/12/amicusstith.pdf amicus brief of Prof. Kate Stith (Yale)].
# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/12/amicuslacdl.pdf amicus brief of the Lousiana Association of Criminal Defense Lawyers].
{{wl-publish: 2010-09-12 21:00:00 -0700 | abassos }}

@@ Line 3: / Line 3: @@
 ====The Expert:====
-<div class="media_embed">
+{{#ev:vimeo|18518542}}
 [http://vimeo.com/18518542 Bronson James on Unanimous Juries] from [http://vimeo.com/user3764779 Alex Bassos] on [http://vimeo.com Vimeo].

@@ Line 1: / Line 1: @@
-===The Expert:===
+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:
 <div class="media_embed">
-[https://secure.vimeo.com/18518542 Bronson James on Unanimous Juries] from [https://secure.vimeo.com/user3764779 Alex Bassos] on [https://secure.vimeo.com Vimeo].
+[http://vimeo.com/18518542 Bronson James on Unanimous Juries] from [http://vimeo.com/user3764779 Alex Bassos] on [http://vimeo.com Vimeo].
 </div>
-===
+====The Trial Memo:====
 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.
-* [[http://libraryofdefense.org/sites/default/files/unanimity2.doc unanimity2]]
+* [[http://libraryofdefense.org/sites/default/files/unanimity2_0.doc unanimity2]]
-===The Argument:===
+The essence of the unanimous jury argument is succinctly set forth in Eugene Volokh's cert stage [http://www.law.ucla.edu/volokh/herrerareply.pdf reply brief]:
-−
-−
-The essence of the unanimous jury argument is succinctly set forth in Eugene Volokh's [http://www.law.ucla.edu/volokh/herrerareply.pdf cert stage reply brief]:
 <blockquote>
 # ''As [the Supreme] Court has repeatedly stated, the Jury Trial Clause requires unanimous convictions in federal criminal cases.''
 # ''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.''
 # ''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).''
 </blockquote>
-===Preservation:
+====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.
+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:
@@ Line 47: / Line 41: @@
 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:====
 The Supreme Court Petitions and Briefs:
 ===
-Here's the [http://volokh.com/2010/12/14/my-non-unanimous-criminal-jury-case/ 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:
+Here's the [http://volokh.com/2010/12/14/my-non-unanimous-criminal-jury-case/ 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:
 # The state's [http://www.law.ucla.edu/volokh/herrerabio.pdf Brief in Opposition].
 # Eugen Volokh's [http://www.law.ucla.edu/volokh/herrerareply.pdf reply brief].
-# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusjuryresearchers.pdf amicus brief of professors who have written about jury behavior], Profs. Shari S. Diamond (Northwestern), Valerie P. Hans (Cornell), Kenneth S. Klein (Cal. Western), Stephan Landsman (DePaul), Michael J. Saks (Arizona State), Rita Simon (American), and Neil Vidmar (Duke).
+# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusjuryresearchers.pdf amicus brief of professors who have written about jury behavior].
-# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusabramson.pdf amicus brief of Prof. Jeffrey B. Abramson (Texas)], the author of We, the Jury: The Jury System and the Ideal of Democracy.
+# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusabramson.pdf amicus brief of Prof. Jeffrey B. Abramson (Texas)].
-# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusoregoncrimprofs.pdf amicus brief of Oregon professors of criminal law and criminal procedure], Dean Margie Paris (U of Oregon) and Profs. Barbara Aldave, Leslie Harris, Carrie Leonetti, and Ofer Raban (U of Oregon), Laura Appelman and Caroline L. Davidson (Willamette), and Susan Mandiberg (Lewis &amp; Clark).
+# The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusoregoncrimprofs.pdf amicus brief of Oregon professors of criminal law and criminal procedure].
 # The [http://cdn.volokh.com/wp/wp-content/uploads/2010/10/amicusfpd.pdf amicus brief of the Oregon Federal Public Defender].
 # The [http://cdn.volokh.com/wp/wp-content/uploads/2010/12/amicusstith.pdf amicus brief of Prof. Kate Stith (Yale)].
 # The [http://cdn.volokh.com/wp/wp-content/uploads/2010/12/amicuslacdl.pdf amicus brief of the Lousiana Association of Criminal Defense Lawyers].
-{{wl-publish: 2010-09-12 21:00:00 -0700 | abassos }}