A Criminal Enterprise

C-Murder, the Framers, and the Social Scientists.

Posted in Uncategorized by Robert Smith on August 25, 2009

On August 11, 2009, a unanimous Jefferson Parish, Louisiana jury convicted Corey “C-Murder” Miller of second-degree murder in the 2002 shooting death of 16 year-old Steve Thomas. Two jurors believed  the state had not proven its case against Miller beyond a reasonable doubt. In forty-eight states and at the federal level, Mr. Miller would have walked out of the courthouse a free man [correction: he would remain subject to retrial]. But in Louisiana, which along with Oregon is one of two states that permit non-unanimous criminal verdicts, the reasonable doubts of two jurors were not enough to save C-Murder from a one-way ticket to Angola.

That might be about to change. At its first conference this fall (September 29, 2009), the United States Supreme Court will decide whether to hear the case of an Oregon man, Scott Bowen, who is asking the Court to re-examine whether non-unanimous criminal verdicts really are Constitutional. Of course, Mr. Bowen faces spotty odds of getting his Petition accepted at all—but the fact that the Court asked for a response from the State, a relatively rare occurence in non-capital cases,  translates into reason for some measured optimisim.

The other challenge that stands in the way is the splintered 1972 plurality opinion in Apodoca v. Oregon, where the Court found that no practical difference exists between unanimous and non-unanimous juries and accordingly rejected the defendant’s argument that the Constitution requires unanimity in criminal cases.

But, as the Petition in Bowen argues, the Apodaca plurality erred in both its approach and its conclusion. First, the “functional” analysis (how does a jury work in real life, Bob?) is wrong as a matter of methodology. The Court’s recent Sixth Amendment jurisprudence makes clear that when it comes to jury trial rights one must begin with Blackstone and never forget the Framers. And when we do, we find that the Framers believed “that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’” Blakely v. Washington, 542 U.S. 296, 301 (2004) (emphasis added) (quoting William Blackstone, Commentaries on the Laws of England *343 (1769).

But even on its own terms the Apodaca plurality got it wrong. More than four decades of social science research indicates that unanimous juries deliberate longer, discuss and debate the evidence more thoroughly,  reach more reliable conclusions (as measured by the % of votes consistent with the  judge’s view of the evidence), and are more tolerant and respectful of dissenting voices. *For more on the empircal evidence, consult the amicus brief filed by the Charles Hamilton Houston Institute in Lee v. Louisiana (referenced and linked below)*

Moreover, non-unanimity may also promote dubious racial and gender dynamics. In Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261, 1278 (2000), former NYU law Professor Kim Taylor-Thompson  explains that minority (race, not number) views are often excluded from serious consideration when they are in the minority (number) of jurors. The article also cites studies showing the men tend to cut off the ideas of women whom they disagree with.  *The impact of race and gender in jury deliberations is more detailed in her discussion, so please read for full force.* As a prescient Justice Stewart recognized more than three decades ago: “[Ten] jurors can simply ignore the views of their fellow panel members of a different race or class [or gender].” From the first-hand reports of trial observers, both of the dissenting jurors in C-Murders’s case were African-American. So, depending on the breakdown of the rest of the jury, the trial might be an example of the Empty Votes argument in practice.

Update: The Times-Pic reports that the state failed to convince a third juror that Corey Williams was guilty, and that she only voted guilty to be able to be done with deliberations.  That article is here.

A New York Times article on the Bowen case, written by Adam Liptak, is available here.  The Petition (and amici briefs) in a Louisiana case that raised the the same issue last year is available below via link to Scotus Blog’s Petitions to Watch from 2008)

Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.


The Legal Times wrote a relevant article on the Lee case, which applies with equal force to the Bowen and C-Murder cases: http://www.scotusblog.com/wp/conference-call-do-guilty-verdicts-have-to-be-unanimous/

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