The Volokh Conspiracy

That’s unconstitutional, says a Ninth Circuit panel in yesterday’s Williams v. Cavazos decision (which seems correct to me). An excerpt:

As a general matter, the Sixth Amendment does not prohibit the mid-deliberation dismissal of jurors who are unable to serve or who engage in misconduct. In Miller, for example, we found no constitutional violation in the dismissal of two jurors after deliberations had begun: one of whom was sick with the flu, and another who had been intoxicated the previous morning and had fallen asleep during the rereading of testimony. To the contrary, we held that the “California substitution procedure followed by the trial court” — Penal Code section 1089 — was constitutional because it “preserved the ‘essential feature’ of the jury required by the Sixth and Fourteenth Amendments.” ...

It is just as clear, however, that the Sixth Amendment does not allow a trial judge to discharge a juror on account of his views of the merits of the case.... The jury is the only actor permitted to determine guilt — not the judge. It is well-established, of course, that “a judge may not direct a verdict of guilty no matter how conclusive the evidence” in a criminal case. It would similarly vitiate the “essential” role of a jury to act as a “safeguard” against both the power of the state and the court for a judge to selectively dismiss jurors based on the views of the merits of the case they express during deliberations. Such dismissals are thus prohibited as well, because a court cannot “do indirectly that which it has no power to do directly.”

Indeed, no one, including the judge, is even supposed to be aware of the views of individual jurors during deliberations, because a jury’s independence is best guaranteed by secret deliberations, such that jurors may “return a verdict freely according to their conscience” and their “conduct in the jury room [may be] untrammeled by the fear of embarrassing publicity.” ...

Accordingly, in deciding whether to discharge a juror mid-deliberation, the critical Sixth Amendment questions are whether, after an appropriately limited inquiry, it can be said that there is no reasonable possibility that the juror’s discharge stems from his views of the merits, and whether the grounds on which the trial court relied are valid and constitutional. If the answer to either question is no, the removal of the juror violates the Sixth Amendment. We will discuss the two questions separately....

[T]he record discloses a “reasonable possibility that the impetus for [Juror No. 6's] dismissal stems from the juror’s views on the merits of the case.” At least seven jurors expressed the view that Juror No. 6 did not believe that the evidence was sufficient to prove guilt of murder beyond a reasonable doubt, thereby making a total of two-thirds of the panel.... The juror’s views regarding the insufficiency of the evidence were thus made known to the prosecution as the result of a rigorous inquiry into the thought process and reasoning of Juror No. 6. Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons....

Although the reason offered above is sufficient to require granting the writ on the ground that Juror No. 6′s discharge violated the Sixth Amendment, the trial court’s lack of “good cause” for removing the known holdout juror provides an independent reason for reaching the same conclusion....

Although refusing to follow the law or refusing to deliberate would be “good cause” for discharging a juror, the trial court expressly disclaimed any finding that Juror No. 6 was guilty of either, and the Court of Appeal affirmed that determination. The only good cause relied upon for dismissal of Juror No. 6 was “actual bias.” The court did not find, however, that Juror No. 6 was “biased” in any traditional sense of the term, as would have been the case if, for example, he had stated that he could not be impartial or had accepted a bribe related to the case. Nor did it find that he had “implied bias,” such as might have resulted from Juror No. 6 having a connection to one of the parties, or being related to someone who had either committed or been a victim of some similar crime.

Rather, the court found that the juror was “biased” for five overlapping reasons: (1) “the fact that he added his own words to the court’s instructions as to what the law is,” which “indicates where his mind is bent towards and that is biased against the prosecution in the matter”; (2) “his repeating of the severity of the charge in conjunction with his bringing up the subject of juror nullification,” which “establishes his state of mind that he’s bent in that regard, that he’s concerned about the severity of the charge, which means the severity of the punishment”; (3) when the judge “asked him what burden of proof he was relying on, he said it was a [sic] very, very convinced beyond a reasonable doubt,” which the judge believed to mean “higher than beyond a reasonable doubt because the charge is murder”; (4) the fact that “[h]e also disagrees with the felony murder rule”; and (5) the fact that “[h]e’s dishonest to me in stating that no juror including himself had discussed the severity of the charge, had not discussed juror nullification.”

[T]he bases for discharge relied upon by the trial judge [do not] constitute, under the circumstances of this case, “good cause” for removing a known holdout juror. [The court then goes on to deal with each of the five reasons. -EV]

A bill just introduced in Florida:

(1) A person who enters onto a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, Florida Statutes.

(2) A person who photographs, video records, or otherwise produces images or pictorial records, digital or otherwise, at or of a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, Florida Statutes.

(3) As used in this section, the term “farm” includes any tract of land cultivated for the purpose of agricultural production, the raising and breeding of domestic animals, or the storage of a commodity.

Note that subsection 2 is independent of subsection 1 — photographing farms would be made a felony even if the photographer isn’t trespassing (for instance, because he’s on a public road, or lawfully on neighboring property). And not just any felony — a first-degree felony, which is the highest degree felony other than capital crimes and “life felonies” (which carry a mandatory minimum of 25 years in prison). The precise term of imprisonment would be dictated by the Florida Sentencing Guidelines, but the maximum would be 30 years.

Plus subsection 1 has problems of its own. First, it makes simple trespasses into serious felonies. Second, it covers even behavior that isn’t trespassing, because it covers visits that are based on oral permission (e.g., going to a party at somebody’s farm), and visits that would generally be seen as implicitly permitted or otherwise nontrespassory (e.g., stopping at someone’s farm to ask for directions, or to sell Girl Scout cookies).

Appalling. Thanks to Opher for the pointer.

I regret to say that the Court has denied my petition for certiorari challenging Oregon’s practice of allowing convictions by 10-2 and 11-1 votes. For more on the issue, see here, or just look at the cert petition. I’m disappointed, but of course not surprised — for virtually any cert petition, the chances of getting a grant are very slim. And I found the process of drafting a cert petition to be very interesting, enjoyable, and educational.

Many thanks to all who have helped me with this, including Bear Wilner-Nugent and DeAnna Horne (Mr. Herrera’s lawyers below); Don Falk, Brette Simon, Brian Wong, Robert Matthews, Patricia Perretti, Helene Siegel, Stephen Wells, and Kristine Neale (colleagues of mine at Mayer Brown LLP); Profs. Shari S. Diamond, Valerie P. Hans, Kenneth S. Klein, Stephan Landsman, Michael J. Saks, Rita Simon, Neil Vidmar, Jeffrey B. Abramson, Barbara Aldave, Leslie Harris, Carrie Leonetti, Margie Paris, Ofer Raban, Laura Appelman, Caroline L. Davidson, Susan Mandiberg, and Kate Stith, and the Oregon Federal Public Defender and the Lousiana Association of Criminal Defense Lawyers (amici who filed briefs on our side); and Prof. Ken Klein, Douglas Hallward-Driemeier, Aaron Katz, Eugene Morgulis, Prof. Carrie Leonetti, C. Renée Manes, Laura Graser, G. Ben Cohen, Jee Y. Park, and Joshua Perry (the lawyers for those amici). In the words of Hilaire Belloc (who as it happens was the great-grandson of Elizabeth Ryland Priestley, an earlier writer on the freedom of speech), “Decisive action in the hour of need / Denotes the Hero, but does not succeed.”

I’ve just filed a reply brief in Herrera v. Oregon, the case in which I argue that the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, should be read to require jury unanimity for a conviction in state court; and the Louisana Criminal Defense Lawyers Association has filed an amicus brief (thanks to them, and to lawyers G. Ben Cohen, Jee Y. Park, and Joshua Perry, for that). For those interested in the matter, here are all the documents filed at the cert stage:

1. My petition for certiorari.
2. The state’s Brief in Opposition.
3. My reply brief.
4. 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).
5. The amicus brief of Prof. Jeffrey B. Abramson (Texas), the author of We, the Jury: The Jury System and the Ideal of Democracy.
6. 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).
7. The amicus brief of the Oregon Federal Public Defender.
8. The amicus brief of Prof. Kate Stith (Yale).
9. The amicus brief of the Lousiana Association of Criminal Defense Lawyers.

An update for those people who have been interested in my certiorari petition in Herrera v. Oregon (the one that argues that the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, should be read to require jury unanimity for a conviction in state court):

A. The Oregon Attorney General’s office has just filed its brief in opposition, in response to the Court’s call for a response.

B. I’ll be writing and filing our reply brief within the next 10 days or so.

C. I’m delighted to say that Prof. Kate Stith of Yale Law School has filed another amicus brief in support of our petition. Many thanks to Prof. Stith, and to Laura Graser, who was Prof. Stith’s lawyer on the brief.

I’m glad to say that yesterday the Supreme Court asked the State of Oregon to file a response in Herrera v. Oregon, the case in which I filed a certiorari petition challenging Oregon’s practice of allowing criminal convictions by nonunanimous juries. (Louisiana is the only other state that allows such convictions in cases to which the Jury Trial Clause applies.)

Such a CFR is necessary but not sufficient for the Court to agree to hear the case. The CFR is a positive signal, since it shows that at least one Justice thought the case had enough possible merit to justify asking that the state respond; most unresponded-to petitions are denied without any response being requested. But of course the Court might well still deny even though it has asked for the response.

The state now has until Dec. 2 to file its brief. We will then reply within the next 10 days, and the Court should decide in January whether it will hear the case.

Note that the call for a response opens up another window for the filing of amicus briefs on our side; such briefs can be filed until Dec. 2. Let me know, please, if you know of some person or group who might be interested in participating.

I blogged last month about my certiorari petition in Herrera v. Oregon. My argument is that the Jury Trial Clause — as historically understood, and as accepted by the Court in federal cases — requires jury unanimity for a conviction, and that following McDonald v. City of Chicago the same rule should be applied to the states. Since a lot of readers expressed an interest in the case, I thought I’d update them on what’s happening.

A. I’m delighted to say that four amicus briefs have been filed in support of our petition:

1. One was filed by 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); some of them have done some of the most prominent research in the field.
2. Another was filed by Prof. Jeffrey B. Abramson (Texas), the author of We, the Jury: The Jury System and the Ideal of Democracy.
3. Another was filed by 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).
4. And the fourth was filed by the Oregon Federal Public Defender.

Many thanks to the lawyers who drafted the briefs: Prof. Ken Klein; Douglas Hallward-Driemeier, Aaron Katz, and Eugene Morgulis; Prof. Carrie Leonetti; and C. Renée Manes.

My original brief deliberately focused on the historical and doctrinal case for reading the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, as requiring jury unanimity for conviction. The amicus briefs focus chiefly on the social science evidence that favors jury unanimity, and more broadly the pragmatic arguments in favor of a jury unanimity requirement: The jury unanimity requirement protects the proof beyond a reasonable doubt requirement, prevents convictions of the innocent, promotes jury deliberation, protects members of racial and other minorities, and makes the criminal justice system more credible to the public; and it does this with only a fairly low rate of hung juries (about 5.6% nationwide). I hope the amicus briefs will persuade those who are primarily interested by the pragmatic arguments, or who are primarily interested in my historical and doctrinal arguments but worried about the pragmatic objections to those arguments.

B. The state is not filing a Brief in Opposition right now, which is generally a pretty sensible measure for respondents (the parties that won in the court below). The Court won’t agree to hear the case (by granting certiorari, often known as “granting cert”) unless it first calls for a response (such a call is often known as a “CFR”). A respondent might well wait to see whether at least one Justice will CFR, or whether the Court will just deny cert without any need for a response.

C. My hope, then, is that a Justice will indeed CFR; either a CFR or a denial of cert should happen by November 15 — naturally, I’ll keep you folks posted about that.

I was pleased to see that SCOTUSblog listed my certiorari petition in Herrera v. Oregon as one of the three petitions of the day for today.

In the discussion of my Herrera v. Oregon certiorari petition, some wondered about the source of the conclusion that the Sixth Amendment right to trial by jury includes the requirement that the jury be unanimous for a conviction. Recall that this is settled under the Sixth Amendment as such, with regard to federal prosecutions; the question that my petition deals with is whether this provision should be incorporated into the Fourteenth Amendment, and thus bind state prosecutions as well. I thought I’d separately blog the historical discussion (Parts II.A and II.B of the petition), though you can of course also read it in the PDF version. For other arguments, please also look at the PDF.

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.... [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.

2 Blackstone, Commentaries *378–79. Likewise, Blackstone listed the requirement of “unanimous suffrage” on a jury as part of the protection provided by the jury trial to “the liberties of England,” and argued that “inroads upon this sacred bulwark of the nation [the jury trial] are fundamentally opposite to the spirit of our constitution.” 4 id. *349–50. John Adams took the same view in America, writing that “it is the unanimity of the jury that preserves the rights of mankind.” 1 John Adams, A Defence of the Constitutions of Government of the United States 376 (Philadelphia, William Cobbett 1797).

While the Bill of Rights was being ratified, Justice James Wilson — “who was instrumental in framing the Constitution and who served as one of the original Members of this Court,” Victor v. Nebraska, 511 U.S. 1, 10 (1994) — stressed the unanimity requirement in his 1790–91 lectures: “To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity.” 2 James Wilson, Works of the Honourable James Wilson 350 (Philadelphia, Lorenzo Press 1804); see also 2 id. at 306, 311, 342, 351, 360 (further noting the unanimity requirement).

Justice Wilson’s lectures were about law generally, not constitutional law as such. But he was discussing the meaning of “the trial by jury” in criminal cases. E.g., 2 id. at 344, 348. And it is the “right to a ... trial, by an impartial jury” that the Sixth Amendment enshrines as a constitutional command (and that Article III, § 2, cl. 3, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,” likewise enshrines). As George Hay, the United States Attorney in the Aaron Burr trial, put it, “The trial by jury is a technical phrase of the common law. By its insertion in the constitution, that part of the common law which prescribes the number, the unanimity of the jury and the right of challenge is adopted.” United States v. Burr, 25 F. Cas. 55, 141 (C.C.D. Va. 1807).

St. George Tucker, author of the 1803 edition of Blackstone’s Commentaries, likewise treated the Sixth Amendment as embodying the trial by jury described by Blackstone: His footnote on the Blackstone pages cited above (4 Blackstone *349–50, in 5 St. George Tucker, Blackstone’s Commentaries 348–51 (Philadelphia, William Y. Birch & Abraham Small 1803)) noted that “the trial by jury” described in Blackstone’s text was adopted in America, and secured by the Sixth Amendment. 5 Tucker, supra, at 348–49 n.2. Tucker cited the Sixth Amendment alongside its Virginia analog, which required “a speedy trial by an impartial jury of his vicinage without whose unanimous consent [the defendant] cannot be found guilty.” Ibid. And he wrote that “without [the jurors’] unanimous verdict, or consent, no person can be condemned of any crime.” 1 id. at App. 34.

Justice Joseph Story, in his great constitutional law treatise, likewise stressed that the constitutional “trial by jury” is the same “great privilege” that had been “part of that admirable common law.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1773, at 652 (Boston, Hilliard, Gray 1833). Justice Story endorsed the Blackstone articulation of the terms of that “great privilege”: “I commend to the diligent perusal of every scholar, and every legislator, the noble eulogium of Mr. Justice Blackstone on the trial by jury.” 3 id. at 654 n.1 (citing “3 Black. Comm. 379, 380, 381; 4 Black. Comm. 349, 350,” which note the requirement of unanimity); see also 3 id. at 652 n.1 (citing “4 Black. Comm. 349”); 3 id. at 653 n.2 (citing “4 Black. Comm[.] 349, 350”). And in a different passage, Justice Story further confirmed that unanimity was understood as a constitutional requirement: His discussion of the constitutional standard for impeachment contrasted the two-thirds requirement for conviction in an impeachment trial with the rule in criminal trials, where “unanimity in the verdict of the jury is indispensable.” 2 id. § 777, at 248.

Continue reading ‘Unanimity as a Requirement of the Trial by Jury, from 1765 to the Late 1800s’ »

I just filed (with a great deal of help from my Mayer Brown LLP colleagues) a petition for certiorari (Herrera v. Oregon) asking the Court to decide whether nonunanimous criminal convictions are unconstitutional. My sense is that it isn’t too legalese, and the issue — and the historical discussion — might be of some interest to people, but of course I’m the wrong person to impartially evaluate that. If you want to read the petition, start on PDF p. 16, so you skip the table of authorities, the jurisdictional items, and the like.

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with this year’s McDonald v. City of Chicago decision. (McDonald calls such an approach “watered-down” incorporation.) In fact, in Apodaca, only one Justice — Justice Powell — concluded that the Jury Trial Clause required unanimity in federal trials but that this provision shouldn’t be incorporated against the states. The other eight would have applied the Jury Trial Clause the same way both to federal and state trials, but four said (incorrectly, in my view) that it didn’t require unanimity in either and four said it required unanimity in both. Justice Powell was the controlling vote, and that’s how the partial incorporation result was reached.

I’d be particularly interested in talking to people whose organizations might be inclined to file amicus briefs on this. (Amicus briefs will be due “30 days after the case is placed on the docket” — Oct. 9 plus a day or two, given the docketing delays.) My view is that amicus briefs are even more helpful at the petition stage than at the merits stage, since the big challenge with any such case is to persuade the Court that this is an issue that deserves the Justices’ attention. So if you might be interested, please drop me an e-mail at volokh@law.ucla.edu.