The Trial Lawyer Summer 2018 - Page 55

During its discussion , the Court did not mince words in expressing its disapproval of a vote by a nonunanimous jury :
If a deficiency of one juror might be waived , there appears to be no good reason why a deficiency of eleven might not be ; and it is difficult to say why , upon the same principle , the entire panel might not be dispensed with , and the trial committed to the court alone . It would be a highly dangerous innovation , in reference to criminal cases , upon the ancient and invaluable institution of trial by jury , and the constitution and laws establishing and securing that mode of trial , for the court to allow of any number short of a full panel of twelve jurors , and we think it ought not to be tolerated . Patton v .
U . S ., 281 U . S . 276 , 302 ( 1930 ).
Until its 1972 Apodaca v . Oregon ruling , the view of the Court prevailed that a unanimous verdict was an essential element of a Sixth Amendment jury trial . In Apodaca , the SCOTUS declared that as few as ten jurors did not amount to an unconstitutional practice . Despite definite infirmities , Apodaca remains a precedent . It has also been the reason why Louisiana courts have ignored years of challenges to its non-unanimous jury system . Under this system , in certain felony cases , convictions can occur upon the vote of at least 10 of 12 jurors .
Because Apodaca branded this system legal , some officials defend it as just . Prudent consumers of history know it is unwise to equate legality with justice . Slavery and segregation were once legal . In a prior time , it was legal to deny women and African Americans the right to vote . Legality merely requires state sanctioning ; justice is conceived in a much higher sphere and is born of greater ideals . As Russell Kirk said in The Meaning of Justice , “ Justice is a certain rectitude of mind , whereby a man does what he ought to do in the circumstances confronting him .” 1 Justice — not necessarily legality — should always be the aim of a civilized society .
The Apodaca case resulted from challenges brought by two people convicted by non-unanimous juries ( 11 to 1 & 10 to 2 ) in Oregon , the only other state that allows the use of nonunanimous juries in certain criminal cases . Those Oregon defendants raised Sixth and 14th Amendment challenges . The Apodaca court failed to entertain any meaningful discussion of group decision-making . Instead , the court focused its attention on the process . It devoted some of its attention to the history of unanimity in this country and on the function of a jury , which it said was to guard against the corrupt or overzealous prosecutor and against the compliant , biased , or eccentric judge . The Apodaca court reasoned that a jury consisting of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate , free from outside attempts at intimidation was good enough to satisfy constitutional muster . In the end , the court determined that there was no difference between a vote of 10 , 11 or 12 .
The SCOTUS ’ s refusal to invalidate Apodaca is a travesty . Apodaca is a plurality decision , which means that a majority agreement of the court never existed . If no opinion fully commanded the assent of a majority , this suggests an internal struggle existed . In the wake of such , it is illogical not to see Apodaca as an enfeebled decision that has outlived its shelf life . At the time Apodaca was decided , the vast research on group thinking that we now have simply did not exist . Since that 1972 ruling , much more is known . While the research does not show that unanimous juries are flawless or that non-unanimous juries always fail , it does offer some compelling insights . The research suggests that unanimous verdicts are more reliable , more careful and more thorough .
The American Bar Association ( ABA ) has taken note of the data . At the time Apodaca was decided , the ABA did not oppose the use of nonunanimous juries . The data led them to rethink their position . From 1976 to the present , the ABA has advocated for unanimous verdicts in state criminal trials . Louisiana has reason to follow suit . Louisiana is second in the nation in the rate of wrongful convictions . There is reason to believe that Louisiana ’ s nonunanimous jury system is a contributor . In 2017 , the Innocence Project New Orleans reported that 11 of 25 Louisiana exonerations resulted from trials where non-unanimous juries were used .
When Apodaca was before the SCOTUS , the court was reviewing Oregon ’ s law and not Louisiana ’ s law . The two laws were not identical . Oregon ’ s law did not allow nonunanimous verdicts in cases of firstdegree murder ( and still does not ); Louisiana does ( in non-capital cases ). Louisiana ’ s law explicitly exempts capital cases ; no such language appears in the text of Oregon ’ s law . In Louisiana , for first-degree murder ( that is not a capital case ) and second-degree murder , the sentence is an automatic term of natural life ; this is not the case in Oregon ( where the options span between life with or without parole , death and in excess of 25 years in custody ). Besides these substantive differences , the spirit of the law is at issue . Louisiana requires unanimous verdicts in capital cases . In my view , allowing non-unanimous verdicts where the sentence is natural life undermines the intent behind the insistence on unanimity where the loss of life is at issue in a capital case .
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