The Unanimous Jury Issue

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

by: Abassos • January 6, 2011 • no comments

The Expert:

Bronson James on Unanimous Juries from Alex Bassos on Vimeo.

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The Trial Memo:

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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

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.

1. 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.

1. 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:

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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.

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The Supreme Court Petitions and Briefs:

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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, 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).
4. The amicus brief of Prof. Jeffrey B. Abramson (Texas), the author of We, the Jury: The Jury System and the Ideal of Democracy.
5. The 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).
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.