A new challenge to non-unanimous jury convictions

The right to a trial by jury is among the most fundamental in the Constitution. Juries are guaranteed three times in the Bill of Rights: grand juries in the Fifth Amendment, criminal juries in the Sixth, and civil juries in the Seventh. The right is also protected in Article III, which directs that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Yet in two states, Louisiana and my home of Oregon, the right to a trial by jury has been watered down by rules allowing non-unanimous convictions and acquittals. In these states a vote of 10-2 is sufficient to convict.

A fractured Supreme Court upheld the constitutionality of these convictions in the 1972 case Apodaca v. Oregon and has since declined to reexamine the issue. However the time is ripe to once again challenge this ruling as an improperly selective incorporation of fundamental rights against the states.

UCLA law professor Eugene Volokh has taken up the cause and submitted a compelling petition for certiorari [PDF] in the case of Alonso Herrera, an Oregon man convicted by 10-2 vote of unauthorized use of a vehicle. Volokh argues convincingly that McDonald v. Chicago, this year’s landmark case fully incorporating the Second Amendment against the states, renders the Apodaca ruling glaringly inconsistent with the Court’s theory of incorporation.

The question is not whether the Sixth Amendment requires unanimity in jury trials; for federal trials, this question has been settled in the affirmative. At issue is whether this requirement is carried over to the states by the Fourteenth Amendment. The Apodaca decision was the result of an odd 4-4-1 split among the justices. Eight disagreed evenly about whether unanimity was required, but agreed that the whichever was the correct interpretation of the amendment, it ought to be fully incorporated against the states. The deciding vote came down to Justice Lewis Powell, who alone on the Court argued that the right to jury trial should be only partially incorporated and not include the requirement of unanimity.

McDonald rejects such partial incorporation. Justice Alito’s opinion in that case holds that “Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States…” And further, that “this Court decades ago abandoned ‘the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights’…”

And as Volokh points out, a footnote in McDonald makes explicit that the exception in Apodaca was based on contingency, not on principle:

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon; Johnson v. Louisiana. But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation.

The Court declined to hear a challenge to Oregon’s non-unanimous convictions as recently as last year, but the inconsistency of the partial incorporation of jury trials calls out for reconsideration. If the Court grants certiorari in Herrera v. Oregon it promises to be an important case for one of our most essential liberties.

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