Supreme Court Argument Casts Light On Oregon Non-Unanimous Juries

In Hurst v. Florida, the death row inmate is challenging Florida’s unique capital system that involves the jury's simple majority recommendation on death, with the judge making the final decision whether the defendant is to be executed. In the course of the briefing, lead counsel Seth Waxman distinguished Apodaca v. Oregon – the notorious 1972 decision upholding Oregon’s 10-2 juries as sufficient to convict in non-capital cases – and also argued for Apodaca to be overruled. So we now have excellent up-to-date briefing from the petitioner as well as a thorough amicus brief from the American Civil Liberties Union to use as resources for our Oregon litigation against non-unanimous juries.

The briefs rely on MacDonald v. City of Chicago, in which the Court rejected the idea that Second Amendment rights applicable to the States through incorporation by the Fourteenth Amendment’s due process clause could be watered down in the process. Back in 2010, this blog post pitched MacDonald – especially its footnote identifying Apodaca as a due process anomaly – as signaling an end to Apodaca, complete with links to certiorari and amicus briefing from Stanford law professor Jeff Fisher and teams of Oregon lawyers.

On October 13, 2015, the Supreme Court heard arguments in Hurst. Before long, the subject of Apodaca arose. The 7 to 5 jury recommendation under the Florida jury system did not necessarily require a re-examination of Apodaca’s approval of 10 to 2 convictions in Oregon. Here’s my favorite part (page 25-26 of the edited transcript), where Justice Sotomayor expresses what is at least skepticism about Apodaca’s viability.

JUSTICE SOTOMAYOR: Do you think this scheme, assuming we agree with Justice Scalia, that you don’t really need unanimity, would this still be good law under Apodaca,the case that said that we needed a unanimous jury, but, you know, nine out of twelve is okay? Do you do you think seven out of five is okay?
MR. WAXMAN: I hope it was clear from our brief that we think
JUSTICE SOTOMAYOR: It’s not.
MR. WAXMAN: nine out of five is not okay. It doesn’t require this Court to overrule Apodaca, which
JUSTICE SOTOMAYOR: We’re not required to do anything. We could just say it’s not the functional equivalent. But is it still good law?
MR. WAXMAN: Well, six
JUSTICE SOTOMAYOR: Shouldn’t we overrule it?
MR.WAXMAN: I we think, for the reasons stated in our brief, you should overrule it.

The petitioner’s briefing relied on Alleyne’s footnote 5 as providing a strong rationale for revisiting Apodaca: “The force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” Justice Sotomayor’s concurring opinion in Alleyne reinforced the need to revisit opinions such as Apodaca, which have been superseded by the Court’s Sixth Amendment jurisprudence: “[S]tare decisis does not compel adherence to a decision whose ‘underpinnings’ have been ‘eroded’ by subsequent developments of constitutional law.” The petitioner and amicus briefs in Hurst provide extensive social science that undercuts the rationale of Apodaca and notes that the American Bar Association, which Justice Powell relied upon in his kind-of-plurality opinion, has abandoned its former position and now favors unanimity.

Thanks to the Hurst advocates (and SCOTUSblog) for additional briefing to use for our Oregon litigation against non-unanimous juries and to Justice Sotomayor for the reminder that our petitions for certiorari on this issue may someday bring an end to Oregon and Louisiana’s unjust jury systems.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon