Wednesday Writs for 4/3
When we think of the right to a trial by jury, most of us think of a unanimous verdict by 12 of our peers as the standard. In almost all states, that’s correct. But according the the Supreme Court of the United States in our Case of the Week, Apodaca v. Oregon, unanimity is not required.
Robert Apodaca was one of three appellants whose cases went before SCOTUS following their convictions on several felonies. Oregon did not require a vote of guilty by all 12 members of a jury; Apodaca and one of the other appellants was convicted on a vote of 11-1; the third on a vote of 10-2. The three men sought relief at the high court after their convictions were confirmed at the state level. In evaluating their claims, SCOTUS turned to the historical roots of the common law requirement of a unanimous verdict. The Court noted that while unanimity dated back to the 18th century, the Sixth Amendment of the US Constitution made no mention of it. The Amendment as originally introduced by James Madison did; however, the express requirement of unanimity was omitted in the final language. While some argued that this was because unanimity was so widely accepted as to go without saying, the Court opined that its omission was meant to have a substantive effect.
The Court had taken a similar approach in 1968 in analyzing a challenge to Florida’s practice of requiring only six people on a jury for all but capital cases in Williams v. Florida. The 12-person requirement, like unanimous verdicts, was a jury feature at common law, but the Court found no basis to consider it a Constitutional prerequisite. Apodaca argued that a less-than-unanimous verdict would compromise the achievement of finding guilt beyond a reasonable doubt — to which the Court opined that no such finding is required by the Sixth Amendment (but rather is rooted in theories of due process, which came post-Constitution.) Apodaca also argued that unanimity was required to ensure that the voices of minorities on a jury are not ignored, but this argument was likewise rejected:
We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice, rather than the evidence.
Apodaca was decided on the same day as Johnson v. Louisiana, a case presenting the same issue. The two cases together produced a plethora of concurrences and dissents, with multiple justices joining each. Apodaca was a 5-4 split; the plurality opinion was authored by Justice White, joined by Burger, Blackmun and Rehnquist, with Justice Powell writing a separate concurrence. Justice Stewart dissented, joined by Justices Brennan and Marshall. The dissent cited Duncan v. Louisiana, which held that the Sixth Amendment right to a jury trial in federal criminal cases was applicable to the states via the Fourteenth Amendment. Because federal defendants were also entitled to unanimous verdicts, Justice Stewart reasoned, that requirement was also imparted to states.
Justice Douglas wrote his dissent in the Johnson case, but cited it as applicable to the Apodaca case as well. In Johnson, Douglas conceded that the Constitution does not mention unanimous verdicts. However, he pointed out, neither does it mention presumption of innocence or guilt beyond a reasonable doubt. He further agreed with Stewart’s Apodaca dissent, that it is nonsensical for unanimity to be a right for federal criminal defendants but not state, when both have a right to trial from the Sixth Amendment.
The Apodaca decision continues to be law now, 47 years later.
[L2]: Perhaps not for long, however. SCOTUS is taking the issue of unanimous juries up again. Louisiana recently amended its state constitution to prohibit non-unanimous jury verdicts, prompting one convicted murderer to ask the Court to retroactively apply the ban and overturn his conviction. Only Oregon still permits the practice.
[L3]: In keeping with the death penalty theme, SCOTUS put out another capital punishment opinion this week. Condemned inmate Russell Bucklew claims, uncontestedly, that due to an unusual illness lethal injection will cause him an extraordinarily painful and gruesome death. The 5-4 opinion written by Justice Gorsuch says a painful death is not a violation of the 8th amendment prohibition against cruel and unusual punishment, suggesting that an execution method is not subject to a case by case determination of cruelty, and even if it was, Bucklew failed to present an alternative in sufficient detail.
[L4]: In 1963, 26 year-old Emmet Bondurant argued before the Supreme Court as a new lawyer. He was there to challenge Georgia’s congressional districts in a segregationist gerrymandering case and won. Fifty-five years later, he’s set to return to the high court, this time to block partisan redistricting in North Carolina.
[L5]: Finally in SCOTUS news, moose hunting via hovercraft gets a unanimous green light. Sotomayor, writing for the majority, says the National Park Service had no jurisdiction to stop an Alaskan man from using his hovercraft to reach the moose-hunting grounds.
[L6]: You’ve probably seen the recent beer commercials with the medieval theme in which a large vat of corn syrup has been misdelivered to the Bud Light kingdom, rather than the Miller Lite/Coors Lite kingdom where it belongs. MillerCoors is now suing Anheuser Busch for their insinuation that its beer contains corn syrup, a claim MillerCoors says is false and misleading.
[L7]: I personally would love to serve on a jury, but I seem to be the anomaly. People will try all kinds of things to avoid their civic duty, including invoking one’s friendship with cannibalistic serial killers.
[L8]: Immigration law is a niche and not known to be particularly prestigious, despite the crucial work they do. “Saint Judy” is a new movie honoring the work of one such attorney who fought for asylum for an Afghan woman facing an honor killing in her homeland for her work as a women’s rights activist.
[L9]: Lawyers may not come to mind when one thinks of the “gig economy”, but that’s really what a solo practioner does — and so-called “freelance attorneys” are in high demand right now.
[L10]: Our dumb criminal of the week showed up to the police station to retrieve a gun confiscated in a 2017 traffic stop — unaware that he was wanted for murder. Might want to check for warrants before you visit the cops to demand your gun back.