Legal Commentary

The National Law Journal just ran a story on a new effort to get the Supreme Court to re-visit its decision in Apodaca v. Oregon (1972), which allows states to adopt non-unanimous decision rules in the criminal jury context.  Only two states have adopted such rules, notwithstanding the Supreme Court's permission (though many countries have non-unanimous jury decision rules for criminal convictions) -- and some criminal defendants in Louisiana and Oregon and their lawyers think the time is ripe for overruling Apodaca.  Indeed, a very fancy law professor is on board.  Here's a taste:

In Lee v. Louisiana, veteran high court litigator Jeffrey Fisher of Stanford Law School, co-chairman of that school's Supreme Court Litigation Clinic, argues that nonunanimous verdicts contravene "literally centuries of common law, as well as longstanding American precedent, requiring unanimity to convict in criminal cases."

Supporting his petition is an amicus brief by the American Bar Association, whose standard favoring nonunanimity was relied upon in part by the Apodaca court, but which since has been long abandoned in the face of jury verdict research supporting the importance of unanimity to thoughtful and thorough jury deliberations. Fisher also has drawn amicus support from national and state criminal defense organizations.

As I told the reporter (I'm quoted at the end of the article as a supporter of non-unanimous verdicts) , I don't read the evidence on the importance of unanimity as overwhelming.  But it is certainly true that there is more social science on the subject than there was in 1972 and that the ABA has changed its mind.  Is that a good reason for the Court to grant cert?  I'd doubt it: the evidence isn't especially easy to parse, the Court isn't very good at social science, and the sky hasn't fallen on Oregon or Louisiana.  True, not many states have taken advantage of the possibility -- but that's federalism for you.  To be sure, some of the Court's originalist and jury-centered jurisprudence in the wake of Apprendi, Blakely, etc. gives Fisher et al. hope that the Court will revisit Apodaca.  But in light of the Court's New Federalism (or is it dead?), its newfound interest in what other countries do (where unanimity is not the norm), and the lack of clarity in the research, I'd be surprised if the Court took the case.

If it does, though, I think I'll write an amicus brief in support of non-unanimous verdicts in light of my thinking on the subject over the years.  If you are interested, let me know.