A Criminal Enterprise

Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South

Posted in Cases, News by Sophie Cull on February 2, 2011

Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.

Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.

In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)

The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.

Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.

Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”

Posted in Uncategorized by Bidish J. Sarma on February 9, 2010

The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN.  Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.

The abstract states:

Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims.  This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities.  Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences.  By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury.  This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.

After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization.  We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole.  Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty.  As always, we invite commentary and discussion here.

The Death of Death-Qualification

Posted in Uncategorized by Robert Smith on August 26, 2009

Thank you to the Crim Prof Blog for highlighting a recent article that Ben Cohen and I wrote in the Case Western Law Review. The abstract for that article, The Death of Death-qualification, is available  here, so I won’t go into too much detail. The basic gist is that both at the Founding and in Blackstone’s England, no mechanism existed that would allow the State to remove from a jury–at the outset of a capital prosecution– all those who appear to be opposed to imposing the maximum punishment allowed by law. We conclude that “modern ‘death qualification’ jurisprudence frustrates the framers’ understanding as to the role of the criminal jury. Whereas the framers’ jury had the power to rule on the constitutionality of the death penalty, though the force of any ruling applied only to the particular case on which they sat, a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death.”

Attempting to move this argument from the academic into the real world, we filed a cert petition in Campbell v. Louisiana (which was rejected late last year, but the Petition and amici briefs are available from Scotus Blog here (scroll down the list of Petitions to Watch)). In order to prevail on the historical argument in a state court case, we need to prove that (1) historical understanding is the proper methodology and (2) our historical arguments are right, and thus the state statute allowing for the for-cause removal of citizens who have reversations about whether the death penalty is a proper or even constitutional punishment. BUT, as Ben recently noticed shortly after assuming his role as counsel on a federal death penalty appeal, there is NO federal statute that authorizes the exclusion of such jurors at the federal level.

So, at the federal level, where does the source of the power to exclude or “death-qualify”  jurors come from? Not a statute (unlike in Witherspoon, Adams, and Witt).  And, if our historical argument is correct, not from common law either.

This isn’t an academic exercise or even an ideologically driven quest to re-fasten the Sixth Amendment to its historical underpinnings. Death qualified juries severely undermine the fairness of capital trials—both at the guilt and penalty phases. Social scientists have demonstrated, and even the noted District Attorney Joshua Marquis admits, that death qualification results in juries that are more likely to convict at the guilt phase: “I won’t deny that a death-qualified juror is probably more likely to be willing to look at a guilty verdict. I think that the difference is negligible.” (See NYT article below).  Also, it is likely true that who receives a death sentence is more easily predicted by an examination of the quality of voir dire lawyering than in the severity of the crime (defense lawyers who use the “Colorado Method” of selecting a jury, and who do it well,  rarely see a death verdict returned against their clients).

Moreover, the death-qualification process most likely operates to exclude a disproportionate number of racial and ethnic minorities. This is not the only way death-qualification strips the defendant of a fair cross-section of the community. Adam Liptak summarizes the findings of empirical studies by Professor Brooke Butler’s and others in a 2007 NYT article that can be found here:

““They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences.

In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.”

So death-qualification would not have been acceptable to the Framer’s, no statute authorizes its operation in the federal death penalty context, and its likely practical effect is to create guilt-prone juries and to exclude broad swaths of the community…. but there are at least two more  problems:

First, removing all of the voices of jurors who might not be willing to sentence a person to death undermines the ability of the Court to assess how much its citizens have cooled to the idea that capital punishment is an acceptable punishment in light of our evolving standards of dececeny. As the Court has repeatedly stated, because they are an “on-the-ground” assessment, jury verdicts  are one of the most powerful objective indicators that a particular punishment is excessive.

Second, the Witt standard, which says that jurors must not be “substantially impaired” from considering a sentence of death, is applied unevenly.* Now retired Chief Justice Calogero of the Louisiana Supreme Court forcefully articulated an example of this issue in his dissent in State v. LaDerrick Campbell:

I believe there should be a level playing field for the accused and the state in jury selection in capital cases. In this case, the majority found that the trial judge had properly excused on the state’s challenge for cause prospective juror Rosie Lee. The majority reasons, “Lee’s admission that she would consider the death penalty under certain extreme circumstances is outweighed by her consistent statements during the majority of voir dire that she would not impose the death penalty under any circumstance.” Ante, p. 84. That same rationale should have applied to the majority’s treatment of the defendant’s challenge for cause of juror Payne. Payne repeatedly expressed his presumption in favor of the death penalty and his unwillingness to even consider a life sentence unless the defendant proved the existence of mitigating circumstances “beyond a really reasonable doubt.” Therefore, this juror’s mere acknowledgment that he could consider a life sentence was surely “outweighed” by his consistently strong statements during the majority of voir dire that the death penalty was the “appropriate” sentence for this crime and that he would hold the defendant to an improperly onerous burden of proof to overcome that presumption. Thus, had the trial judge and the majority today applied the law evenhandedly, in my view, both would have found that juror Payne was no more qualified to sit on the jury than was prospective juror Lee.

I’ll end this post with three recent quotes from Justice Stevens:

Baze v. Rees, 128 S. Ct. 1520,1550 (2008)(Stevens, J., dissenting)(The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.)

Baze v. Rees, 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring) (“Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”).

Uttecht v. Brown, 127 S. Ct. 2218, 2238-2239 (2007) (Stevens, J., Souter, J. Ginsburg, J., and Breyer, J.,dissenting) (“Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. . . . Today the Court ignores these well established principles, choosing instead to defer blindly to a state court’s erroneous characterization of a juror’s voir dire testimony.”).


*While this observation comes from reading transcripts from numerous jurisdictions, there is no hard data. Hopefully, that will soon change as I understand that a long-term study is underway. From what I can tell, the inequality happens in at least three ways.

First, jurors who repeatedly say that they cannot impose death, but then admit under defense questioning that they could consider it if the judge tells them to, etc, are still excluded on the idea that the totality of the answers suggests that the juror could not be fair. But, when a juror will not consider a life sentence, but then agrees to “just consider” a death sentence or to “follow the law” that juror is less frequently excluded for cause.

Second, judges appear to give the “can you follow the law” bit more often to jurors who will not consider life than to jurors who will not consider death. And, come on, how many people are going to tell the judge that they will not “follow the law.”

Third, prosecutors use the “you only have to consider the mitigating evidence but you can give it “any weight that you want to” … will you just consider death? Well “consider” does not equal an honest and open possibility. And the problem here is that when you oppose death on moral or religious grounds, you will not “consider” it as a sentence (even if only in name) but how many people morally or religiously oppose a life sentence (rather than just think the “guy deserves it”). And if you are not morally tied-up in the issue, then you can at least “consider” a life-sentence even if  in name only. So people who are equally unwilling to truly consider a sentence (life or death) are unequally excluded depending on whether the sentence they won’t consider is life or death.

At issue is
whether the State may – at the outset of a capital prosecution –
remove from a jury all those who appear to be opposed to
imposing the maximum punishment allowed blawThclosest historical basis for a for-causexlcusion i

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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