April 21, 2020

"In 1972, the Supreme Court ruled that the Sixth Amendment guarantees a right to a unanimous jury – but that defendants in state trials do not have such a right."

"[Monday], by a vote of 6-3, the justices reversed course, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The ruling is significant not only for the inmates who were convicted by nonunanimous juries in Louisiana and Oregon, but also for the extent to which the justices were deeply splintered as they debated whether and when to overturn longstanding precedent.... Justice Neil Gorsuch wrote for the majority, in an opinion that was joined in full by Justices Ruth Bader Ginsburg and Stephen Breyer and in part by Justices Sonia Sotomayor and Brett Kavanaugh....  Kavanaugh filed a concurring opinion that focused on his views on the application of stare decisis to this case.... [The question is whether the precedent is] 'not just wrong, but grievously or egregiously wrong'... whether the prior precedent has 'caused significant jurisprudential or real-world consequences'... [and] whether people have relied on the earlier decision... Justice Clarence Thomas... wrote separately to argue that this right applies to the states through the 14th Amendment’s privileges or immunities clause, rather than the due process clause. Alito’s dissent [premised on stare decisis] was joined by Chief Justice John Roberts and (for the most part) Justice Elena Kagan...."

Writes Amy Howe at SCOTUSblog.

You might enjoy the NYT "Daily" podcast with Adam Liptak discussing the decision. He thinks that Justice Kagan joined the dissent because she cares about preserving other precedent, specifically the abortion-rights cases.

I was glad to see that 1972 case (Apodaca) overruled. It was always a stumbling block when trying to teach this area of constitutional law (the "incorporation" doctrine). I always tried to convey an understanding that the cases and doctrine — right or wrong — make sense. Whether you yourself would have decided the case the same way, you need to work to see how it made sense to the judges who decided it. All the effort I put into trying to understand Apodaca so I could express the sense of it coherently to students! If only I could have seen into the future and been able to say: Don't worry about Apodaca — it will be overruled in 2020.

Here's the full text of the new case, Ramos v. Louisiana. From the Gorsuch opinion:

Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements....

Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.”... [B]oth Louisiana and Oregon have frankly acknowledged that race was a motivating factor....

The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”...

Still, the promise of a jury trial surely meant something— otherwise, there would have been no reason to write it down.... Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence.... The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.

One of these requirements was unanimity. Wherever we might look to determine what the term “trial by an impartial jury trial” meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.

The requirement of juror unanimity emerged in 14th-century England and was soon accepted as a vital right protected by the common law. As Blackstone explained, no person could be found guilty of a serious crime unless “the truth of every accusation . . . should . . . be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion.”A “ ‘verdict, taken from eleven, was no verdict’ ” at all.

This same rule applied in the young American States. Six State Constitutions explicitly required unanimity. Another four preserved the right to a jury trial in more general terms But the variations did not matter much; consistent with the common law, state courts appeared to regard unanimity as an essential feature of the jury trial.

It was against this backdrop that James Madison drafted and the States ratified the Sixth Amendment in 1791. By that time, unanimous verdicts had been required for about 400 years. If the term “trial by an impartial jury” carried any meaning at all, it surely included a requirement as long and widely accepted as unanimity....

Nor is this a case where the original public meaning was lost to time and only recently recovered....

There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government.So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court....

74 comments:

GatorNavy said...

Yes! Did you see those Nazi’s Gorusch and Kavanaugh wrote opinions affirming unanimous jury verdicts! What great Nazi’s they are to remove laws that were originally designed to harm African-Americans!

Fernandinande said...

holding that the Sixth Amendment establishes a right to a unanimous jury

It's so cute the way they just make up stuff.

Glenn Howes said...

Perhaps Ann can describe the difference in approach between Thomas and Gorsuch in their opinions.

rcocean said...

"Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.”... [B]oth Louisiana and Oregon have frankly acknowledged that race was a motivating factor...."

This is ridiculous bullshit. Oregon had no minorities - read black people - or KKK in the 1930s. Yoking together Oregon with LA is insane! Goresuch is turning into a disappointment. But i was suspicious of him when fake-cons like Jonah Goldberg praised him. Read Alioto's great dissent, which I will quote:

Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably
succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” Ante, at 1. And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Ante, at 1–2. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise AfricanAmericans. Ibid. If Louisiana and OIf Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing.


That the "Great Conservative" Goresuch would join Ginsberg and Sotomayor and write this trash really saddens me. Look for him to "grow in office".

Fernandinande said...

by a vote of 6-3, the justices decided that unanimity is required. You can't make this stuff up!

D.D. Driver said...

It's better for one innocent man to go to jail than to jeopardize easy access to abortion. That's in the Federalist Papers. Look it up.

LYNNDH said...

What, an opinion that had the court divided all over the place.

Ken B said...

Interesting. We just had a discussion about incorporation here.

I approve.

JohnAnnArbor said...

Leaving ALL juries, not just MOST juries, prisoner to the occasional individual jerk who won't convict because defendant is a certain occupation/race/sexm or doesn't like the law in question, etc. or who votes to convict regardless of lack of sufficient evidence for similar irrelevant reasons.

Sebastian said...

"by a vote of 6-3, the justices decided that unanimity is required. You can't make this stuff up"

Well, you can, because they can. The "court" is entirely unconstrained, they can say whatever they like, for whatever reason, just because.

So, here: those mean racists in Oregon were wrong!

The notion that there is a "doctrine," or precedent, or anything at all that forces them to do x or y is silly--a myth propagated by con law teachers.

How about an amendment that only a unanimous court can say what the Constitution "requires"?

stevew said...

Interesting. Strange bedfellows and all that.

Scott said...

I'm sorry for my lack of understanding. I'm not a lawyer but I read the various summaries of the opinions. I agree that this was the right decision but I don't understand how "unanimity" in verdict equates to "impartial" in ability to be objective. I don't see how a quality of the jury (impartiality or bias) is connected to the outcome (unanimity or divided vote). Can somebody help me out?

Fernandinande said...

Well, you can, because they can.

I was very inconsistent )-;

Here's the only occurrence of the word "unanimous" in the Constitution:

"Ratification ..
Done in Convention by the Unanimous Consent of the States..."

Big Mike said...

Kagan sees the trap.

BarrySanders20 said...

Apodaca "was always a stumbling block when trying to teach this area of constitutional law (the "incorporation" doctrine). I always tried to convey an understanding that the cases and doctrine — right or wrong — make sense. . . . All the effort I put into trying to understand Apodaca so I could express the sense of it coherently to students! "

Selective incorporation always made me wary of courts. It established that courts would pick and choose which rights they wanted to elevate and which ones they had no current use for. For a long while the Second Amendment was a red-headed stepchild. But my law professors assured me that it was fine -- even constitutional -- for courts to discriminate among and between rights, despite what the privileges and immunities clause in the original Constitution says and again in the 14th amendment. So I forced the round peg into the square hole and answered the essay question the right way, or at least I tried to. I am glad that Ann is glad to see Apodaca overruled and has some regrets about the round peg/square hole instruction.

Josephbleau said...

Now when I am a juror I will have complete power over others because I can prevent any conviction I want. I can’t make any one I want guilty, but type 2 errors are all mine. Mu ha ha ha ha!

Josephbleau said...

Now when I am a juror I will have complete power over others because I can prevent any conviction I want. I can’t make any one I want guilty, but type 2 errors are all mine. Mu ha ha ha ha!

Xmas said...

Fernand,

If you read the analysis in the decision, when the 6th amendment was written, English Common Law and Blackstone's books on English Common law clearly indicate that a 'Trial by Jury' requires a unanimous jury verdict. See page 4 of the decision:

As Blackstone explained, no person could be found guilty of a serious crime unless "the truth of every accusation . . . should . . . be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion."

Greg the class traitor said...

I love the historical ignorance on display here.

The KKK was virulently anti-Catholic, not just anti-black.

On the West Coast it was also anti-Japanese and anti-Chinese

https://oregonencyclopedia.org/articles/ku_klux_klan/

AlbertAnonymous said...

So Gorsuch and Kavanaugh voting to overturn Supreme Court precedent ....

Wonder what the lefties think?

Wait, they voted to overturn “non-unanimous” juries, and linked it to racism? Hmmm. I suspect the lefties love that. For now.

So when the Roe/Doe “constitutional right to abortion” precedent comes up for a vote... I wonder what the lefties will think then?

Actually I don’t wonder. They’ll fall right back to “precedent can never be touched” like “believe all women”.

Besides. It’s right there plain as day expressly provided for in Amendment Number... wait, it’s here somewhere... it’s.. um... well somewhere in the penumbra there’s kind of an emanation of ....

Oh fuck it. If Blackmun or Kennedy see a new constitutional right that no one else sees, then it must be there.

Roger Sweeny said...

It is my deep down hope that this will be used to overturn all cases allowing "reverse discrimination" and to establish the simple, inspirational principle, "the Constitution is color-blind."

Ken B said...

Scott
I think the point was the word jury. Juries go back to the 1100s. They were always required to be unanimous. So if the promise of trial by a jury, whether impartial or any other adjective, means anything that meaning must include unanimity.

Xmas said...

rcocean,

I mean, the Governor of Oregon from 1923 to 1927 was an open KKK member.

https://en.wikipedia.org/wiki/Walter_M._Pierce

The Oregon state constitution had an amendment that prohibited Blacks from entering the state.

Howard said...

In the 1920s, Oregon had the largest Ku Klux Klan (KKK) membership per capita in the United States.[2] KKK member Walter M. Pierce was elected governor in 1922.[3]

Oregon did not ratify the Fifteenth Amendment to the United States Constitution, which prohibited the federal and state governments from denying a citizen the right to vote based on their color or race, until 1959.[3]

Fernandinande said...

Gov't lawyer sez: "Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified."

Common law of 14th-century England, eh? /Home Simpson voice

Then how come ... ?

In Australia majority verdicts are allowed in South Australia, Victoria, Western Australia, Tasmania, the Northern Territory, New South Wales and Queensland, while the ACT require unanimous verdicts

Ireland: It is not necessary that a jury be unanimous in its verdict.

New Zealand previously required jury verdicts to be passed unanimously, but since the passing of the Criminal Procedure Bill in 2009 the Juries Act 1981[43] has permitted verdicts to be passed by a majority of one less than the full jury (that is an 11–1 or a 10–1 majority) under certain circumstances.

England and Wales:
In the past a unanimous verdict was required. This has been changed[55] so that, if the jury fails to agree after a given period, at the discretion of the judge they may reach a verdict by a 10–2 majority.

Scotland:
In criminal trials conviction is on the basis of a majority verdict, (8 out of 12?).

Yancey Ward said...

It is a result I like since I prefer more power be in the hands of individuals than the state, but I do have to question the validity of Gorsuch's reasoning. The 6th Amendment clearly doesn't require a unanimous verdict in the text itself- Gorsuch bootstraps Blackstone and the fact that some early states explicitly required it in their constitutions. The British, today, don't require it, and they are closer to the common law than the US was.

Mark Jones said...

I am thrilled by today's ruling. I've served on two juries in Oregon and I always found it blatantly unjust that less than the full jury could vote to convict someone. The whole point of a jury is that the government may not punish you until and unless it can convince twelve random people that a) a crime was committed, and b) that the defendant did it.

Not 11 out of 12 or 10 out of 12. All twelve. If they can't meet that bar, then the defendant is acquitted. As he should be.

Do I want one maverick juror to be able to prevent a conviction? HELL, YES. If the government can't convince twelve jurors that someone did something for which he ought to be punished, they SHOULD lose. (And that includes jurors who simply don't believe the testimony or evidence, even from cops or "experts" or jurors who think that crime X shouldn't be a crime.) It also, alas, will include bigots who manage to get on the jury, but still it's better than seeing people imprisoned by majority rule.

Ray - SoCal said...

Alito’s dissent I can understand, he's trying to respect "stare decisis", which is a conservative ideology, trying to minimize changes.

Chief Justice John Roberts decision is more interesting, and my guess he is trying not to open a can of worms he sees with the issue of ignoring "stare decisis". He is trying so hard to ignore the fact the Emperor is Wearing No Clothes.

Justice Elena Kagan decision I seeas ideological, and about weakening "stare decisis", which could overturn a lot of decisions that are mostly Liberal, perhaps Roe V Wade, that are not great constitutional law.

Interesting the liberals on the court did not vote as a block, as they usually do.

Ken B said...

It’s typical of Jerry Lewis Dawkins that he cites modern laws in New Zealand as relevant precedent to what the founders were thinking in 1789.

Char Char Binks, Esq. said...

Louisiana had non-unanimous verdicts because its laws are based on the Napoleonic Code, not because white people in Oregon are racist.

Now I’d like to see Ronald Gasser pardoned and freed after his false conviction for murder after a black man who chased him down on a highway got out of his car at a stop light and reached menacingly inside Gasser’s car. That was a non-unanimous verdict.

Mike (MJB Wolf) said...

I love it. Is this something we can all get behind? May this signal that DUE PROCESS is finally getting its due. And Barr keeps declassifying more that reveals Schiff’s deception and the FBI’s growing credibility problem with Federal courts and one secret one for sure. Yeah. Good things continue to happen mid-crisis.

Ken B said...

Josephbleau: ” type 2 errors are all mine. Mu ha ha ha ha!”

Fight the power!

Ann Althouse said...

“ Perhaps Ann can describe the difference in approach between Thomas and Gorsuch in their opinions.”

Thomas wants to use a different clause for incorporation, the Privileges and Immunities Clause instead of the Due Process Clause. A very old case cut off the P&I clause, so that’s a stare decisis problem in itself. Thomas is more willing to overrule precedent than the others. It is a fine point of textualism.

Ken B said...

Althouse
I have long thought the P&I clause should incorporate the bill of rights holus bolus. I know that has never been the accepted reading. What was the relevant case?

phantommut said...

I'm struck by how well written Gorsuch's opinion is. Logical, thorough, and accessible.

Mike (MJB Wolf) said...

As a layman I see this as equalizing Due Process among the States. It fits that space. I’m glad a strange coalition formed to do it. This is going to make the next Kavanaugh protest awkward. And I’m forced to appreciate RBG. All in all a good sign of America healing and pulling together to do good work. Win win win! So much winning.

etienne said...

I thought the reasons for dissent were pretty lame.

"Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision..."

"To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting non-unanimous verdicts—even though this Court found such verdicts to be constitutional..."

People don't care about racist precedents, and they do care that the court endeavored that these racists persevere.

A bad day for the Chief Justice. His days are numbered.

Andy said...

@Etienne 11:54 am
A bad day for the Chief Justice. His days are numbered.
Exactly how is that. Who is going to remove him?

Bob said...

Mark Jones said, "Do I want one maverick juror to be able to prevent a conviction? HELL, YES."

I too have served on criminal juries, three of them. I too am happy with this decision. But we part company over the "one maverick juror" the prosecution can't convince.

In one instance the "maverick juror" was not an insightful fellow who found a flaw in the prosecution's case. The juror was simply a stupid person. As foreman, I could see this guy wasn't going to change his mind under any circumstances, but I had to wait patiently while ten other jurors made their arguments to the guy (very creatively in some cases), only to have him insist he still had "reasonable doubt". Then I had to explain to the judge very carefully what the "dissenting juror's" issue was. I had to leave no clue I might or might not be that juror.

The proof the guy was stupid? After the judge declared a mistrial, thanked us for our service, and dismissed us, and we were all in the lobby chatting with the attorneys, we all began the trek downstairs. The "maverick juror" asked, "Do we have to come back tomorrow morning?"

BothSidesNow said...

rcocean writes that Oregon had no minorities in the 1930s. I think the point trying to be made is that therefore allowing less than unanimous verdicts could not have been racially motivated. Why did Oregon have no minorities in the 1930s? Look up the Wikipedia entry entitled "Oregon black exclusion laws." The law was finally repealed in 1926. The repeal was put to the voters of Oregon and passed by 62%. So 38% of the good people of Oregon, in 1926, still wanted an all-white Oregon. Wonder if that might be why there were no minorities in Oregon? And I wonder if a populace with that mind set might have favored less than unanimous verdicts, just in case?

Dust Bunny Queen said...

We are also supposed to be guaranteed juries of "our peers".

Define peers according to the original definition used by the people of the era of the founders was something like : "a person who is of equal standing with another in a group"

Meaning that if you were a common schlub your peers wouldn't be the upper crust and vice versa. The Lords and Ladies would be tried by others of their status not the peons. The common folk...got a common folk jury. A good idea to prevent miscarriages of justice from caste rivalry or hatred of the other groups...AND to have the people on the jury able to understand your particular circumstances because they are also in those circumstances.

Today...who is your peer? Who is NOT your peer?

The likelihood of getting a 100% agreement on a jury....other than the most obvious and egregious cases....is pretty slim.

BarrySanders20 said...

"A very old case cut off the P&I clause, so that’s a stare decisis problem in itself."

I believe Ann is referring to the Slaughterhouse Cases (1873)(a 5-4 decision) which led to U.S. v Cruikshank (1876)(9-0), a now-notorious case that involved the horrors of the post-Reconstruction south, ushered in Jim Crow, etc. Cruikshank has been selectively repealed for the last hundred years, including in 2008 with the Heller decision.

Michael McNeil said...

Winston Churchill on juries and the English Common Law vs. Roman Law: [quotes…]

It is a maxim of English law that legal memory begins with the accession of Richard I in 1189. The date was set for a technical reason by a statute of Edward I. It could scarcely have been more appropriately chosen however, for with the close of the reign of Henry II we are on the threshold of a new epoch in the history of English law. With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a law common to the whole land and to all men soon took its place. A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son he would feel almost at home. That is the measure of the great King's achievement. He had laid the foundations of the English Common Law, upon which succeeding generations would build. Changes in the design would arise, but its main outlines were not to be altered.

It was in these fateful and formative years that the English-speaking peoples began to devise methods of determining legal disputes which survive in substance to this day. A man can only be accused of a civil or criminal offence which is clearly defined and known to the law. The judge is an umpire. He adjudicates on such evidence as the parties choose to produce. Witnesses must testify in public and on oath. They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge b[ut] by twelve good men and true, and it is only when this jury has determined the facts that the judge is empowered to impose sentence, punishment, or penalty according to law.

All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even to-day, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. He must answer all questions put to him. His right to be represented by a legal adviser is restricted. The witnesses against him can testify in secret and in his absence. And only when these processes have been accomplished is the accusation or charge against him formulated and published. Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty.

These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry II's great-grandson, Edward I had died English criminal and civil procedure had settled into a mould and tradition which in the mass govern the English-speaking peoples to-day. In all claims and disputes, whether they concerned the grazing lands of the Middle West, the oilfields of California, the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.

[/unQuote]
____
(Winston S. Churchill, A History of the English Speaking Peoples, Volume 1: “The Birth of Britain,” Dodd, Mead & Company, New York, 1956 [8th Printing, 1962], pp. 221-223)

Gahrie said...

Apodaca is no where near as bad as Roe which would be decided the next year.

Ken B said...

BarrySanders20
Thanks

Gahrie said...

Althouse
I have long thought the P&I clause should incorporate the bill of rights holus bolus. I know that has never been the accepted reading. What was the relevant case?


That would mean the states would have to honor the Second Amendment, and the Left won't allow that.

Ken B said...

Gahrie
Yes it would. I am not a big fan of the 2A but I believe it means what is says and should be enforced by the courts.

Mark Jones said...

Dust Bunny Queen said, "The likelihood of getting a 100% agreement on a jury....other than the most obvious and egregious cases....is pretty slim."

That's probably true. And I view that as a feature, not a bug. If the government starts having real trouble getting convictions on the countless vague, nitpicking, or unknown laws we labor under daily, that's a good thing. Perhaps it will dissuade them from bringing some of those cases. I *want* the government to have to work hard to get a conviction.

etienne said...

Andy said...Exactly how is that. Who is going to remove him?

Sorry for the confusion, I'm Catholic. Saint George is going to tap Jesus on the shoulder and say "let's put that one in hell".

Gahrie said...

If the government starts having real trouble getting convictions on the countless vague, nitpicking, or unknown laws we labor under daily, that's a good thing. Perhaps it will dissuade them from bringing some of those cases. I *want* the government to have to work hard to get a conviction.

Actually all it does is give the government further reason to plea bargain away a defendant's right to trial. The vast majority of criminal cases are settled before trial. our court system is drowning under the number of cases it does try.

Did you know that in 2018 only 63% of murder/manslaughter cases were cleared? (Cleared means someone was arrested, or that the police know who did it, but can't arrest them for some reason)

You know what is more interesting? That percentage is higher than every other form of crime. Aggravated assault came in second at 52%. All other crimes are less than 50%. The vast majority of criminals in the United States go uncaught and unpunished.

Rabel said...

The Oregon case that led to their non-unanimous jury law is a great read - mobsters, speakeasys, an unfaithful gun moll, a "ride in the country" for the guy who bucked the mob, and (importantly) jury tampering.

Looks to me that the passage of that law was a reaction to mob influence on juries. The mobsters involved were Jewish and Catholic so I guess you could call it racist if you really want to.

Favorite part:

"During the trial, one of the jurors, a Spanish-American War veteran, committed suicide by stabbing himself in the heart near his home." After that, another juror would not agree to a murder conviction and they went with manslaughter and three years in the hooosegow.

Narr said...

Count me with the trads on this one. That the court system is FUBAR already is no reason to throw another concession to the eager beaver prosecutors of the world.

I've never made it to an actual jury, though I've been called to the pool several times for state and federal duty. If I ever do serve, you're fucking right I want the MAXIMUM POWER that I have to influence the outcome.

That's more meaningful to me than the farcical ceremony of voting in elections, which I participate in for historical and antiquarian purposes only, with no expectation whatever that my preference will win.

Narr
I'm beginning to think I paid too much for the Voter's Sash and Tiara set

Readering said...

Kavanaugh dwells on all the decions ignoring state decisis including Brown, which he calls the most important and greatest Supreme Court decision. I thought Marbury was the most important Supreme Court decision.

BarrySanders20 said...

"The vast majority of criminals in the United States go uncaught and unpunished."

The vast majority of crimes go uncaught. Certain individuals commit massive numbers of these crimes and most of these people are eventually caught.

Mark Jones said...

Gahrie, yes I'm aware that most cases are plea-bargained down to lesser charges. It's an easy win for the government, which doesn't have to risk a jury trial, and too often an inevitable defeat for the defendant, who can plead guilty (whether he is or not) so as not to go bankrupt trying to defend himself.

I've read that plea-bargains are illegal in a lot of other countries precisely because of the power imbalance. I think that would be a good rule here. Force the government to triage which cases it REALLY wants to pursue.

Left Bank of the Charles said...

This is the sixth amendment but what about the seventh? Will unanimity also be required for juries in civil trials?

Fernandinande said...

The British, today, don't require it, and they are closer to the common law than the US was.

The US Constitution clearly doesn't require unanimous jury decisions either, or else the authors would have said so; and I'd wager that Australia, Ireland, New Zealand and Wales are all closer to English common law than the rebellious U.S. is, or was.

Certain individuals commit massive numbers of these crimes and most of these people are eventually caught.

A lot of them are caught over and over again.

Fernandinande said...

the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.

It's nice that Winston agrees with my assessments of Australia, NZ, etc.

Spiros said...

Compare the American jury system to the way people behave on twitter and social media. Thought crimes are identified and resolved with something like the old English "hue and cry." An aggrieved individual publicly calls for a posse to hunt down and thrash a suspected thought criminal. The thought criminal get "cancelled."

There is no innocent until proven guilty, no careful examination or cross-examination...

Dust Bunny Queen said...

Mark Jones re: me saying getting 100% consensus on a jury is going to be hard.

If the government starts having real trouble getting convictions on the countless vague, nitpicking, or unknown laws we labor under daily,

Good point. Maybe if it IS hard and they have to work to get a conviction, we will stop with bringing up frivolous charges for anything and everything. Ham Sandwich Nation: when everything is a crime.

Next...get rid of plea bargaining where people trade away their rights and freedom under pressure without a trial. Turning and flipping people like pancakes.

Rockport Conservative said...

I have a personal interest in this as I sat on a jury in Louisiana when a man was tried for manslaughter/second degree murder. I feel justice was turned on it's head in that case. The defendant, a young man had a court ordered attorney who was all but missing during the trial. The assistant district attorney carried a broken baseball bat that had no part in the crime in his hand when speaking to the jury. As it happened the juror who became the foreman told us, the other jurors,he had lived next door to the young man who died in a shootout; that in itself should have stopped the trial completely, it didn't.

There were two holdouts, me and another woman, who was finally convinced to give in on a Friday afternoon because she was leaving town for the weekend. Her weekend over a young man's life.

The young man who was eventually convicted of second degree murder, life in Angola, had the scars on his body the person who died had inflicted. If that young man is still alive, he was 20 at the time, 1985, I hope this will get him out of prison.
If you have heard of the Louisiana legal system being corrupt, trust me you were not mislead.

I no longer live in Louisiana, but I will never forget that experience.

alanc709 said...

Has anyone read the 10th Amendment to the Supreme Court?

BarrySanders20 said...

"The US Constitution clearly doesn't require unanimous jury decisions either, or else the authors would have said so."

Agree that the text does not say anything about unanimity. But maybe that would have been redundant, if, at the time, they all understood a jury conviction had to be unanimous for a serious crime.

cubanbob said...

Instead of banning split jury decisions, we ought to have the old Scottish verdict of not proven guilty. Innocent, guilty or not proven. Another thing is the prosecutor should not be allowed to bring charges above those that were offered in a plea bargain deal. And that upon conviction, the convict be required to serve the balance of any prior convictions consecutively with the new conviction. That's incentive enough to get the frequent flier criminals to take a plea bargain while not coercing other accused into taking a plea deal because of the fear of going away for forever and a day.

Rob said...

Kagan was so intent on preserving Roe v. Wade that she was willing to let this poor schmuck rot in prison. Collateral damage. Even Ginsburg couldn't bring herself to that.

iowan2 said...

Has anyone read the 10th Amendment to the Supreme Court?

This is exactly like the Abbott and Costello routine "Who's on first"

Question: "What about the 10th amendment?
Answer : (in unison) "14th Amendment!"

rcocean said...

"Why did Oregon have no minorities in the 1930s? Look up the Wikipedia entry entitled "Oregon black exclusion laws." The law was finally repealed in 1926. The repeal was put to the voters of Oregon and passed by 62%. So 38% of the good people of Oregon, in 1926, still wanted an all-white Oregon. Wonder if that might be why there were no minorities in Oregon? And I wonder if a populace with that mind set might have favored less than unanimous verdicts, just in case?"

Its amazing how race crazies write stuff that makes zero sense. Its hard to respond. So, in 1926 Oregon *repealed* a race exclusion law and therefore Oregon's 1930s law allowing non-unanimous juries was an attack on blacks.

What fucking sense does that make. Here are the facts:

KKK activity in Oregon in the 1930s? Zero
Government mandated black Segregation in Oregon in the 1930s? Zero
Blacks in Oregon in the 1930s? Almost None.

So why the fuck would Oregon's Primary motive for non-unanimous juries have anything to do with hating black folks? Judas fucking Priest!

Nichevo said...

holus bolus


I thought those were nonsense words that Robert Louis Stevenson invented in Treasure Island. What does that mean?

ken in tx said...

US military Courts Martial only require 2/3 majority for a guilty verdict, except for a death penalty case. Then a unanimous vote is required. I don't remember if a military verdict can be appealed to the Supreme Court or not.

Fernandinande said...

Agree that the text does not say anything about unanimity. But maybe that would have been redundant, if, at the time, they all understood a jury conviction had to be unanimous for a serious crime.

That's possible, yet the 7th Amendment explicitly refers to common law: "... than according to the rules of the common law."

Unknown said...

It's so cute the way they just make up stuff.

You know there's actually a history of the jury trial, right? It's a historical right dating back to Magna Carta. It's always been 12 people, and it's always needed to be unanimous.

It's the people who want to minimize the jury trial that are making up stuff.

The Supreme Court, by the way, let a man (Nathaniel Woods) be executed on the basis of a 10-2 jury decision. Just a month ago that happened. You'd think they would have halted the execution. But they didn't.

rhhardin said...

Ten out of twelve gets rid of the reasonable doubt thing.

rhhardin said...

"Reasonable doubt at a reasonable price" attorney ad.

iowan2 said...

Over the last 10-15 years I have become very much less "let them swing" inclined.

The govt has proven themselves corrupt, and we the people need 100% of the protections enumerated.
The lacrosse players accused of rape?
Richard Jewell
Ruby Ridge
Waco.
I've forgot a bunch, because I'm so distracted by Obama weaponizing the IRS, CIA, DoJ, State Dept, etal.

In short the Crime and Justice system is rotten through out, From beat cops, to Detectives, and Captains, and Commissioners. DA's and their stable of prosecutors, crooked.

Attorney General of the United States? Director of the FBI, hell, the entire 7th floor of the FBI, and a good chunk of the DoJ, consider themselves the law, but not subject to it.