The Supreme Court’s opinion in McDonald
, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule. Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996. Now, McDonald
gives us a new road map for state and federal court litigation:
• Object at trial to non-unanimous jury instructions under the Sixth Amendment as incorporated through the Fourteenth Amendment’s due process clause, as well as under the Fourteenth Amendment’s Privileges and Immunities Clause, and don’t forget to poll the jury to establish that the jury was not unanimous;
• Preserve the issues on appeal to the Oregon Court of Appeals and on petition to review in the Oregon Supreme Court for every non-unanimous conviction, arguing that the State has the authority to reassess the question whether the federal right to a unanimous jury is fully incorporated in light of the Supreme Court’s post-Apprendi
Sixth Amendment jurisprudence and the observation in McDonald
’s footnote 14 that Apodaca
was “not an endorsement of the two-track approach to incorporation;”
• File a petition for certiorari to the Supreme Court based on 1) the exceptionally important question of whether the federal Sixth Amendment right to a unanimous jury is fully incorporated into the Fourteenth Amendment’s due process clause, as well as the Privileges and Immunities Clause, in light of McDonald
’s statement that the unusual division of Justices in Apodaca
failed to resolve that question, and 2) the conflict between Apodaca
and the Court’s recent Sixth Amendment jurisprudence.
The previous work of Stanford law professor Jeff Fisher, State Appellate Defenders Peter Gartlan and Jesse Barton, and our intrepid AFPD Renée Manes is linked below to provide briefing that can be mined and adapted for new pleadings. But first the full story: starting with the problem of non-unanimous juries; then to the freakish decision in Apodaca
; the post-Apprendi
articulation of the Sixth Amendment’s roots in unanimity; and the door flung open in McDonald
.The Disgrace And Injustice Of Non-Unanimous Juries
We Oregonians are somewhat inured to what many in the rest of the country see as a bizarre deviation: we send people to prison for many years – even for the rest of their lives – based on trials where two of the twelve jurors harbored reasonable doubts that the accused person committed the crime. We are practically alone in tolerating this practice – only Louisiana also allows non-unanimous juries in felony cases. If they had filmed Twelve Angry Men
in Oregon, it would have been a very short movie.
There are three fundamental systemic flaws perpetuated by non-unanimous juries. First, the ability to over-ride questions and doubts of two jurors substantially dilutes and negates the right to proof beyond a reasonable doubt. Second, the quality of deliberations is impaired because, as found by the American Bar Association’s jury project, “Studies suggest that where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating and take more ballots.” Third, non-unanimous juries negate the effect of the hard-won progress toward more diversity in juries by allowing minority voices to be ignored.Apodaca Approved Oregon’s Non-Unanimous Juries With Eight Justices Agreeing That The State And Federal Right To Jury Are Identical.
The Court’s decision in Apodaca
came down in 1972 in the context of the Court’s decades long struggle to determine whether guarantees of the Bill of Rights, which by their terms apply only to the federal government, apply to the States through the Fourteenth Amendment’s due process clause. As we learned in law school, some Justices believed in total incorporation (all eight Amendments are fully incorporated through the Due Process Clause of the Fourteenth Amendment), others in selective incorporation (those interests in the Bill of Rights that are fundamental to the Anglo-American system of justice are incorporated), and others were fundamental fairness advocates (only those rights that are fundamental to a fair trial are incorporated). But in all this theorizing, one principle stood out: once deemed incorporated, the federal constitutional right was identical to the right as it applied to the States. Until Apodaca
, the Court fractured in an extremely unusual way: four Justices believed the Sixth Amendment’s right to jury trial did not require proof beyond a reasonable doubt and thus did not require unanimity in either state or federal court; and four Justices believed the jury right required unanimity in both state and federal court. The tie-breaker – Justice Powell – found that the Sixth Amendment applied to the States, that the federal right required unanimity, and that the State right could differ from the federal right by allowing non-unanimity. The usual Supreme Court rule of precedent requires that the narrowest holding upon which a majority agree governs. But here, there was no majority because eight of the nine justices agreed that the federal and state right to jury trial was identical, whether or not unanimity was required.McDonald Reinforced The Principle That The Bill Of Rights Does Not Apply Differently In State And Federal Court.
, the Court revisited for the first time in many years the doctrine of incorporation of the Bill of Rights through the Fourteenth Amendment’s due process clause. Two years ago in Heller
, the Court for the first time recognized the Second Amendment’s personal right to bear arms for self defense in a challenge to a federal handgun ban. The question in McDonald was whether Heller
applied to the States and, if so, whether the right was identical to the federal right. After a fascinating historical journey through the Reconstruction Era need for newly freed slaves to be armed to protect themselves from racially-motivated attacks, Justice Alito’s plurality decision found that the Heller
Second Amendment right met the standards for incorporation.
In doing so, the Court had to address the alternative claim that the Second Amendment should only apply to the States in diluted form. Justice Alito rejected this argument, quoting precedent holding that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” And here’s where the plurality opens the door to new state court and Supreme Court challenges.
In footnote 14, Justice Alito recognizes Apodaca
as “one exception to the general rule.” And here the plurality declares that the question is still open: “But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation
.” After reviewing the Apodaca
split, Justice Alito states, “Apodaca
, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” The plurality has now recognized that the superannuated Apodaca
ruling does not block consideration of the argument that, in light of intervening Supreme Court authority, the unanimous jury requirement of the Sixth Amendment applies equally to the State of Oregon.Intervening Sixth Amendment Jurisprudence Empowers State Courts To Enforce The Federal Right To Jury Unanimity
Now that Apodaca
’s authority has been debunked by the Supreme Court itself, Oregon courts are free to consider for the first time in almost 40 years whether the identical federal Sixth Amendment unanimity requirement applies to Oregon. As the Supreme Court stated in footnote 35 of Stone v. Powell
, “State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and uphold federal law.” The fresh look at the Sixth Amendment as applied to the States must now be informed by the historical analysis of the Sixth Amendment that underlies Apprendi
and its progeny. A key part of this analysis is the Supreme Court’s recognition that proof beyond a reasonable doubt and jury unanimity have been integral to the jury trial right since the Founding of the Republic.
The Court’s reinvigorated Sixth Amendment jurisprudence unquestionably defines the historical Sixth Amendment right as encompassing unanimity. In his Apprendi
concurrence, Justice Scalia described the requirement that charges must be proved “beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.” In Blakely
, the Court cited Blackstone in asserting “that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’” In the Booker
remedial opinion, the Court again used the language of Blackstone in describing the “great bulwark of [our] civil and political liberties” as trial by jury confirming unanimously the charges against the accused. This intervening Supreme Court Sixth Amendment authority, considered in tandem with McDonald
’s rejection of two-track incorporation, provides Oregon courts with an open door to striking down non-unanimous juries as violating the identical federal Sixth Amendment unanimity requirement that applies to the States under the Fourteenth Amendment.The Privileges And Immunities Clause Provides Additional Support For Striking Down The Verdicts Of Non-Unanimous Juries.
Justice Alito wrote for a plurality of the Justices in McDonald
. Justice Thomas provided the swing vote, choosing not to reach the due process question by relying on the Privileges and Immunities Clause of the Fourteenth Amendment. The academics’ amicus curiae briefs weighed in heavily in McDonald
, trying to persuade the Justices to breath life into that moribund clause by overruling the Slaughter-House Cases
. At the oral argument in McDonald
, Justice Scalia derided the approach:
"JUSTICE SCALIA: No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -
JUSTICE SCALIA: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you’re bucking for a -- a place on some law school faculty –"
But the alternative route of overruling Privileges and Immunities Clause precedent persuaded Justice Thomas, so we need to be sure to preserve and argue this ground. Some or all of the other Justices may now agree that, in the Sixth Amendment context, the federal and state protections are identical under the due process clause, but we may need Justice Thomas’s vote both on the certiorari grant and on the ultimate merits in the Supreme Court. Interestingly, only now-retired Justice Stevens defended two-track incorporation in his solo dissent, and even he noted that “there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to State and Federal Governments.”Every Case Involving A Non-Unanimous Jury Could Be The Potential Vehicle For Bringing An End To Oregon’s Unjust And Unconstitutional Practice.
The litigation from the Federal Public Defender office has been hampered by a terrible standard of review. Under the AEDPA, we have had to argue that, after Blakely
, the state decisions upholding non-unanimous jury verdicts violated clearly established Supreme Court authority. State court litigants, Oregon courts, and direct United States Supreme Court review would not be so constrained. Hence, in state court, the Sixth Amendment unanimity issue needs to be consistently argued at each level to establish a winning standard of review.
First, state trial courts should be advised that they are free to rule in the first instance based on McDonald
and the post-Apprendi
Supreme Court jurisprudence on the Sixth Amendment. This will preserve the issue for potential appeal in terms of the Sixth and Fourteenth Amendments as well as the Privileges and Immunities Clause. Second, the issues need to be argued and preserved at both the Oregon Court of Appeals and the Oregon Supreme Court. Then, most critically, the United States Supreme Court needs to be petitioned on all grounds: counsel should convey the importance and urgency of the opportunity to correct a systemic failing that pervades the criminal justice systems of Oregon and Louisiana, and the need to resolve the discord in the Court’s precedent regarding two-track incorporation.
For those litigating this issue, resources are available to assist in briefing and arguing the issue. Jeff Fisher and Peter Gartlan’s petition for certiorari in Bowen
is linked here
; Renée Manes’s amicus curiae brief is here
. For those appointed counsel on direct appeal, the petition for certiorari must be part of the representation because the highest court may provide the only available relief, depending on the Oregon courts’ assessment of their ability to provide meaningful review. Peter, Jeff, and Renée have all indicated their willingness to consult on the issue. And remember the words of Frederick Douglass, who was quoted by Justice Thomas in McDonald
regarding the need for armed self-defense: “Power concedes nothing without a demand; it never did and it never will. Find out what people will submit to, and you have found the exact amount of injustice which will be imposed upon them.”
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon