A Criminal Enterprise

More on (Non) Unanimity: Great Times Pic Article, Bowen Cert Petition, etc..

Posted in Uncategorized by Robert Smith on September 3, 2009

Note: Bowen pleadings at the bottom.

I just noticed this August 27 article in the Times Picayune: “How verdict policy hurts black defendants” by James Gill. Here are some highlights:

The Miller case does, however, demonstrate that a majority-verdict policy stacks the odds against black defendants. That, indeed, was why Louisiana abandoned unanimous verdicts in the first place.

Two of the three black jurors in the Miller case held out for acquittal. The Supreme Court has an opportunity to slay a last vestige of Jim Crow by ruling that their votes cannot simply be ignored.

Louisiana insisted on unanimous verdicts until a new constitution was adopted in 1898 with the express intent of establishing “the supremacy of the white race in this state.”

Delegates did such a good job that Louisiana, which had 130,344 registered black voters in 1897, had only 5,320 three years later.

Under the 1898 constitution, non-capital cases could be decided 9-3. That remained in effect until the constitution of 1974 made it 10-2, which did not make all that much difference. As the Louisiana Association of Criminal Defense Lawyers argued in an amicus brief last year, when the U.S. Supreme Court refused writs in the murder case of Derrick Todd Lee, justice remained elusive for black people.

“When a group forming a majority in the community can elect both the District Attorney and the judge in a parish and then form an effective quorum on the jury, the jury no longer operates effectively as a check on oppression by the government, ” the association wrote.

Prosecutors frequently use peremptory challenges to weed out black people during jury selection, according to the amicus brief, although the 10-2 rule means they don’t always have to be too obvious about it. A couple or tokens may be safely seated.

In Jefferson Parish, where the population is 23 percent black, 22 percent of juries are all white, 35 percent include one black member and 23 percent include two. Thus black citizens may be denied a meaningful voice in 80 percent of the cases.

If the numbers mirrored demographics, more than half the juries in Jefferson Parish would have three or more black members.

The numbers will doubtless remain skewed however the Supreme Court rules. Still, if non-unanimous juries are declared unconstitutional, the black disadvantage will be significantly diminished.

The Miller trial was a travesty regardless. After Miller was convicted in a 10-2 verdict, juror Mary Jacob told the newspaper she voted guilty just so that everyone could “get the hell out of here.”

Jacob was the only white juror who believed the state had not proved its case. But she felt sorry for one of the other two hold-outs, a young woman who was being subjected to “brutal” treatment and “throwing her guts up.”

So Jacob decided to end that recalcitrant juror’s ordeal by changing her own vote and sending Miller up the river.

Adam Liptak, New York Times, recently wrote this article urging the Court to grant Certiorari in Scott Bowen’s case (Oregon): Guilt by a 10-2 Vote: Efficient or Unconstitutional?

Prof. Sherry Colb wrote this piece for FindLaw urging the Court to reconsider the unanimity issue: Ten Angry Men?: “Why The Supreme Court Should Take a Jury Unanimity Case”

Bowen v. Oregon (Pleadings):


View this document on Scribd

Amicus Brief of the Charles Hamilton Houston Institute for Race and Justice, the National Association of Criminal Defense Lawyers, and the Louisiana Association of Criminal Defense Lawyers:

View this document on Scribd

Here is a link to Lee v. Louisiana on Scotus Blog’s Petitions to Watch. You will find the full amicus briefs for CHHIRJ, NACDL, and LACDL there:

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.

2 Responses

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  1. Edward P. Schwartz said, on September 22, 2009 at 7:17 pm

    For a non-knee-jerk (I promise!) argument in favor of non-unanimous verdicts, please see my blog entry at http://tinyurl.com/lcg923 . I think that eliminating unanimity can actually improve minority influence on juries if it is accompanied by the elimination of peremptory challenges. It has been 23 years since Batson, and we still see blacks struck from juries when black defendants are on trial.

    • Robert Smith said, on September 23, 2009 at 4:12 am

      Thanks, Edward. I encourage our readers to check out your post (and your law review article–as I will do soon, I promise). We can agree that peremptory challenges should be abolished. But I fear we are far from agreement on unanimity. A few good faith questions:

      1. If minority participation rates on juries increases, but still represent a % low enough that it means fewer than (2) jurors per jury, how do we solve the silencing problem?

      2. If dissenting jurors exist (but conform) on unanimous juries (I’ll bet CJ Roberts still wishes he could get his colleagues to do this more often), what’s to stop the borderline juror from joining the will be majority under a majority decision rule (or from becoming the 10th vote in the 10-2 rule)? In other words, why reason do we have to believe that no matter where we draw the line there will be some jurors willing to conform (and thus dilute the force of the decision rule)?

      3. Do you contest the findings that unanimous juries deliberate for longer periods of time and are more-thorough?

      4. Do you believe there is room for a distinction between decisions made by Congress (which should reflect public sentiment) and decisions about whether unpopular defendants (in criminal cases) are guilty (given that public sentiment and fear-based reasoning comes into play in this arena)? I’m not equating the jury decision rule with minority rights, but there seems to be some practical justification for different vote rules in different arenas (with the strictest in the jury context in criminal cases).

      5. Do you find any reason for distinction between the United States and countries like Australia and England on the basis of the punitiveness of our criminal system? This is truly a question that I have not thought through, but would love to know your perspective.

      I still believe that Professor Amar’s argument against unanimity is the strongest, Reinventing Juries: Ten Suggested Reforms.” 28 U.C. Davis Law Review. 1169 (1995), but, in my opinion, is still falls short of compensating for the shortcomings of 10-2 rules. Litigating a few cases in places like Jefferson Parish, Louisiana might bring you to a similar conclusion.

      sorry for the hurried and incomplete response. I very much appreciate your comments.

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