Does the Constitution require a unanimous jury in a state conviction?  That’s the question raised by Eugene Volokh in his post and petition for certiorari in Herrera v. Oregon, where a 10-2 verdict for conviction sufficed. 

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.) 

In Oregon (anywhere else?), a verdict of 9 for conviction is apparently sufficient to convict, whereas it’s a hung jury elsewhere.  Not having tried a case in Oregon, this came as news to me.  Shocking news.  Of a twelve person jury, the fact that one of four jurors found that the evidence failed to prove guilt beyond a reasonable doubt means nothing.  Close enough for government work.  And a conviction.  Next case.

Eugene, in a separate post, provides the historical context for the constitutional requirement for unanimity, even though the 6th Amendment mentions nothing about unanimous verdicts.  In short, it was considered so inherent in the right to a jury that it was ultimately determined to be unnecessary for inclusion.  For those who appreciate the historical derivation of rights, this is a fascinating post and well worth the time to read.

The Supreme Court’s Apodaca decision, upon which the authority of Oregon to convict upon a less than unanimous verdict, is simultaneously fascinating and frightening, and provides enormous insight into just how messy it is to make sausage and law.
As recounted in McDonald v. Chicago (and related in Eugene’s petition), which rejected the Apodaca dual track incorporation concept:

[The Apodaca] ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States.

Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials.

Justice Powell‘s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.

For those who appreciate a bit of irony with their Supreme Court decisions, eight justices agreed with each other on one issue, that the right to a jury applies to the states with the same force as the federal government.  They just split, 4-4, on whether the 6th requires a unanimous jury.  Justice Powell, as the man in the middle, got to call the shot for everyone. 

So the upshot is 8 to 1 on full incorporation, but 5-4 on unanimous verdicts, with the 6th Amendment requiring them but it not being incorporated by the 14th to the states.  Imagine what a funny story to tell your defendant when he’s convicted on a 9-3 vote.  He’ll have a good, long time to appreciate the joke.

Eugene’s argument is that the holding in McDonald, rejecting what it called the “watered down” incorporation of rights via the 14th Amendment to the states is unacceptable, should serve to straighten out the mess made by Apodaca‘s sloppy plurality, creating this anomalous rule to which only one justice subscribed.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

While the number of jurors, the gang of twelve, seems to possess less magic than we give it (Why not 10? Why not 15? Why 12?), that however many jurors we seat must reach a unanimous verdict seems beyond question.  Yet it’s apparently a very real question for some, including Alonso Herrera.  The simpler solution would be for Oregon legislators to put an end to this anomaly by requiring, as a matter of state law, that verdicts be unanimous.  But as they haven’t done so, it’s certainly sound that the Supremes put an end to the bastardized decision of Apodaca and hold that the 6th Amendment be fully incorporated, and that the right to a jury trial includes the right to a unanimous verdict.

Addendum:  Over at A Public Defender, Gideon does a tap dance on unanimity in conjunction with the reaction to the Balgo hung jury and jury “reform”.