This Article argues that criminal convictions in state courts should be subject to the same unanimity requirements that the Sixth Amendment imposes on federal criminal convictions. Part I of this Article provides an overview of the U.S. Supreme Court’s jurisprudence on jury size and nonunanimity. Part I includes a discussion of Apodaca v. Oregon and Johnson v. Louisiana, the Court’s 1972 decisions holding that the Sixth and Fourteenth Amendments did not require jury unanimity in state court criminal jury trials even though federal law requires that federal juries must reach criminal verdicts unanimously. This is followed by a summary of many of the recently denied certiorari petitions that have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and social science evidence. Part II explains how the Court’s recent jurisprudence contradicts its 1972 Apodaca and Johnson rulings under the doctrine of incorporation. Specifically, applying the Court’s 2010 McDonald v. City of Chicago incorporation approach to Oregon’s and Louisiana’s nonunanimous jury law signifies that overturning Apodaca should be easy, and in fact indicates that the Court should incorporate the few unincorporated provisions of the Bill of Rights. In addition to the incorporation doctrine, Part III argues that nonunanimous verdicts undermine the reasonable doubt requirement of the right to a jury trial and that the Court’s own case law prior to and since Apodaca and Johnson confirms this right to unanimity, which ensures that the burden of proof beyond a reasonable doubt as a component has been met. Part IV sets forth the current research that shows that unanimity is essential to the purposes of the fair cross section and complete deliberation requirements of the Sixth Amendment. Part V addresses how nonunanimous verdicts contribute to convicting innocent defendants, and Part VI discusses how nonunanimous verdicts disproportionally affect both minority jurors and minority defendants in Oregon. Finally, this Article concludes by recommending that the Supreme Court overturn Apodaca v. Oregon, as the law and current research supports that unanimous juries should be required in all criminal cases. Moreover, even if the Supreme Court does not act, Oregon’s citizenry and Legislature should support amending the state constitution to abolish majority verdicts in all criminal cases. Such an amendment would serve to protect innocent defendants and end a rule that was founded to silence minority viewpoints.
On March 6, 2017, the U.S. Supreme Court rendered an opinion in Pena-Rodriguez v. Colorado. Mr. Rodriguez was convicted in a Colorado state court of “harassment” and “unlawful sexual contact” following a jury trial. After the jury was discharged, two jurors provided counsel with affidavits indicating that another juror expressed a strong anti-Hispanic bias towards the defendant and his alibi witness during deliberations. The trial court acknowledged the juror’s bias but refused to grant a motion for a new trial because Colorado Rule of Evidence 606(b) prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict. This is often called the “no impeachment rule.” The issue in the case was whether the defendant’s right to a fair and impartial jury is violated by the no impeachment rule when there is evidence that a serious racial bias effected deliberations.
The U.S. Supreme Court held that where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement. The court indicated that the test to be used before the no impeachment rule is cast aside is whether “there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” The case was reversed and remanded. Justice Kennedy delivered the opinion of the court. There were three dissenting justices.
This case is important for state courts to take notice of as every state and the District of Columbia have some version of the no-impeachment rule. However, the U.S. Supreme Court stated that 16 jurisdictions “recognized an exception to the no impeachment bar under the circumstances the Court faces here: juror testimony that racial bias played a part in deliberations.” For the remaining jurisdictions, this case will have a direct impact on the trial and appellate courts when this issue is raised.
TED-ED Original on Juries
Professor Suja A. Thomas was the educator for a TED-ED Original titled, What Happened to Trial by Jury? The 4-minute animated video describes the origins of jury trials and the reasons for the decline of the use of juries to resolve disputes. The video is professionally created with high quality animation. It would be an excellent tool for use when speaking to school or civic groups. It is worth taking a few minutes to watch.
Gorsuch’s Plan to Revive Civil Jury Trials
The ABA Journal reported on March 1, 2017 that Judge Gorsuch and Circuit Judge Susan Graber have a plan to revive civil jury trials. Currently, less than 1 percent of federal civil cases are resolved by jury. Under the Gorsuch/Graber plan, federal civil jury trials would be the default resolution mechanism. Litigants would no longer need to file a jury demand notice (Rule 38 of the Federal Rules of Civil Procedure). In a June, 2016 letter, Judge Gorsuch and Judge Graber state the following:
First, we should be encouraging jury trials, and we think that this change would result in more jury trials. Second, simplicity is a virtue. The present system, especially with regard to removed cases, can be a trap for the unwary. Third, such a rule would produce greater certainty. Fourth, a jury-trial default honors the Seventh Amendment more fully.
Juror Demographics Collection Bill
California state senator Scott Wiener introduced SB 576 on February 17, 2017. The bill would add the italicized language below to Section 207 of the Code of Civil Procedure and would require collection of juror demographic information.
207. (a) The jury commissioner shall maintain records regarding selection, qualification, and assignment of prospective jurors.
(b) (1) The jury commissioner shall collect and maintain demographic data from all prospective jurors who appear for jury service pursuant to a jury summons. The demographic data collected and maintained shall include each juror’s race, gender, ethnicity, national origin, and ZIP code of residence. The demographic data shall be collected to determine if the pool of prospective jurors who appear for jury service pursuant to a jury summons accurately represents a cross section of the population of the area served by the court.
(2) The statistical demographic data collected from prospective jurors pursuant to paragraph (1), excluding the names or other personal identifying information of the prospective jurors, is publicly available upon request.
(c) The jury commissioner shall collect and maintain the names of prospective jurors who fail to appear after being sent a jury summons and the action, if any, taken by the jury commissioner in response to a prospective juror’s failure to appear. The name of a prospective juror who fails to appear after being sent a jury summons is only publicly available pursuant to a court order.
(d) A litigant, upon request and in support of a motion to quash the venire or in discovery for a motion to quash the venire, shall be provided a copy of a list of all prospective jurors. That list shall include the identifying information of all prospective jurors who have previously served as trial jurors.
Requesting Orders from High Profile Cases
The National Center for State Courts is currently in the process of updating the book Managing Notorious Trials into a new web -based resource. We have some sample orders from high profile cases, AKA notorious trials, that judges can use as templates to draft the specialized orders required for these cases. If you have any orders used in these types of cases that you could send in, it would be greatly appreciated. This could be decorum orders, gag/limiting orders controlling what the parties can say to the media, specialized jury selection orders, orders establishing media pools, etc. Please send any orders to Greg Hurley at email@example.com .
A Colorado man who was required to register as a sex offender after being convicted of unlawful sexual contact with two teenage girls will get a shot at a new trial, a divided U.S. Supreme Court ruled today. Miguel Peña-Rodriguez had asked a state trial court for a new trial after two jurors told his lawyers that a third juror had made racially biased remarks about Peña-Rodriguez and his main witness, who are both Hispanic. But the state trial court rejected Peña-Rodriguez’s request, citing a state evidentiary rule that generally bars jurors from testifying about statements made during deliberations that might call the verdict into question. In a major ruling on juror bias and fair trials, the Supreme Court reversed that holding by a vote of 5-3 and sent Peña-Rodriguez’s case back to the lower courts for them to consider the two jurors’ testimony for the first time.
The National Post reported on February 26, 2017 a story about Juror Mark Farrant and juror stress. Mr. Farrant was a juror on a triple homicide case. Following the verdict, he was diagnosed with post-traumatic stress disorder and has become an outspoken advocate for juror counseling programs. Dr. Scott Patten, a psychiatrist and professor with the Cumming School of Medicine at the University of Calgary said, “Distress, depression, changes in sleep patterns, appetite, energy, focus, concentration; all of these symptoms could very easily be a part of a person’s response to very disturbing material.”
Virginia Jurors Could Be Compensated with Prepaid Credit Cards
Inside NOVA reported on February 24, 2017 that the Arlington, VA court system is hopeful that the Virginia Legislature will pass a bill which would authorize the payment of juror fees by prepaid credit card. At least one jurisdiction in the state previously tried to use prepaid credit cards for this purpose but the payments system was challenged and ultimately abandoned due to hidden fees the cards were charging. HB 2324 was approved by the House and Senate and submitted to the governor on February 17, 2017. On February 24, 2017 it was returned by the governor to the House with suggested changes. On February 25, 2017, the House unanimously approved the governor’s suggestions. The changed language to the juror payment bill is below, HB 2324 would add the italicized language to the existing statute.
Payment in all cases shall be by negotiable check, warrant, cash, credit to a prepaid debit card or card account from which the juror is able to withdraw or transfer funds, or electronic transfer upon the Commonwealth, or the political subdivision, as the case may be. If payment is made by credit to a prepaid debit card or card account from which the juror is able to withdraw or transfer funds, such card or card account shall permit the juror to make at least one such withdrawal or transfer without incurring any fee for such withdrawal or transfer.
Jurors in the Dylann Roof Case
The Post and Courier published on February 26, 2017 a very unusual op-ed written by the jurors who decided the capital jury trial of Dylann Roof. Mr. Roof was convicted of multiple murders and sentenced to death. The op-ed describes that on February 5, 2017, the jury went to a service at the Emanuel AME Church, which was the scene of the murders. Reverend Manning acknowledged the group's presence prior to his sermon but referred to them as “civil servants” as had been previously agreed because the jurors have each wanted to keep their names out of the public spotlight. Following the service, they went downstairs to the fellowship hall where the murders actually occurred. The op-ed describes their reaction to the actual scene of the crimes. It concludes:
We, the jury, will forever be changed and connected by this trial. We would like to thank the staff from the U.S. District Courthouse, the U.S. marshals from South Carolina and Virginia, Rev. Manning and the congregation of Mother Emanuel, our families, friends and co-workers for their support both during the trial and now after.
We, the jury from the United States v. Dylann Roof, pray that the Charleston community also received some closure to this horrific event.
The jurors -- Gerald, Mitch, Jenn, Paul, Amanda, Danielle, Emily, Lynn, Brenda, Marian, Danny, Tammy, Elizabeth, Carlette, Sarah, Will, Ann Marie and Tonya -- provided this op-ed.
An Inside Look at the Jury Experience
On Mach 2, 2017, the United States Courts released a one-hour video titled, An Inside Look at the Jury Experience. The role of the jury in protecting the rights of Americans in criminal and civil cases is the focus of a U.S. Courts video discussion featuring two U.S. district judges, a clerk of court, and a law professor and author on the jury process.
The panel discussion includes Judge George O’Toole, District of Massachusetts; Judge Reggie Walton, District Court for the District of Columbia; Robin Tabora, Clerk of Court, District of Connecticut; and Andrew Ferguson, law professor at the University of the District of Columbia.
News 6 reported on February 28, 2017 that jury selection in the murder trial of Amy Van Wagner in Waukesha County, WI took an odd twist. It was learned that several jurors watched news stories about the case while they were waiting in the jury assembly room. Jury selection was able to continue.
Jury Related Jokes
Here are a few jury related jokes by famous people:
Some people try to get out of jury duty by lying. You don't have to lie. Tell the judge the truth. Tell him you'd make a terrific juror because you can spot guilty people. George Carlin
You might be a redneck if you missed 5th grade graduation because you had jury duty. Jeff Foxworthy
I was married by a judge. I should have asked for a jury. Groucho Marx
Juror protection bill awaiting governor's signature in WV.
Arrest warrant issued for Denver juror who is alleged to have committed misconduct in a death penalty trial.
Defendants seek new trial based on the prosecutor striking a juror because of his gold teeth.
Proposal to increase juror pay in RI to $35 a day.
Lawyers for Pedro Hernandez are seeking to set aside their client's guilty verdict in the Etan Patz murder trial based on the fact that the 2nd jury hearing the case knew that the first jury was in court watching them.
Juror gets probation for going to the scene of the crime and then lying about it to the judge.
Both the United States Supreme Court, and the Florida Supreme Court have now made it clear that the Florida death penalty statutes that have been in use over the past 45 years are unconstitutional. This result has been predicted since the original adoption of the statutes, and made clear by the Supreme Court's decisions in Sullivan v. Louisiana, Apprendi v. New Jersey, and Ring v. Arizona. How the courts address the 393 prisoners currently on Florida's death row, sentenced to death under an unconstitutional statute, is yet to be determined. This paper reviews the history of the Florida death penalty statutes and provides a census of cases in Florida.
Yesterday, the trial judge handling the Bill Cosby sexual assault case determined that the case will not be moved out of Montgomery County, PA. However, the jurors who will decide Cosby's fate will come from a different county and will be sequestered.