Legal Commentary

Call for a Response (CFR) in My Non-Unanimous Criminal Verdict Case

By Eugene Volokh

I?m glad to say that yesterday the Supreme Court asked the State of Oregon to file a response in Herrera v. Oregon, the case in which I filed a certiorari petition challenging Oregon?s practice of allowing criminal convictions by nonunanimous juries. (Louisiana is the only other state that allows such convictions in cases to which the Jury Trial Clause applies.)

Such a CFR is necessary but not sufficient for the Court to agree to hear the case. The CFR is a positive signal, since it shows that at least one Justice thought the case had enough possible merit to justify asking that the state respond; most unresponded-to petitions are denied without any response being requested. But of course the Court might well still deny even though it has asked for the response.

The state now has until Dec. 2 to file its brief. We will then reply within the next 10 days, and the Court should decide in January whether it will hear the case.

Note that the call for a response opens up another window for the filing of amicus briefs on our side; such briefs can be filed until Dec. 2. Let me know, please, if you know of some person or group who might be interested in participating.

Full post as published by The Volokh Conspiracy on November 03, 2010 (boomark / email).