Tuesday Talk: A Unanimous Verdict?

Time for another Tuesday Talk, where the rules are trashed and you get to scream at the top of your lungs from atop my soapbox. Today’s subject is this editorial from the Oregon Mail Tribune on less-than-unanimous verdicts in criminal trials.

Today, in 2017, Oregon is one of only two states that allow criminal defendants to be convicted with a less-than-unanimous jury verdict. The other is Louisiana.

Why does it matter whether all 12 jurors in a felony case vote to convict, or only 10 of 12?

For starters, a unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict. But the Supreme Court has held that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.

A terrible idea, even if left to states to decide for themselves whether they wish to adopt the federal unanimity requirement? That’s one issue, but the editorial doesn’t stop there, In fact, this is merely the preface to its real point.

Secondly, both Oregon’s and Louisiana’s non-unanimous verdict rules originated in attempts to limit the ability of minority viewpoints to sway jury verdicts.

The non-unanimous verdict clearly facilitates conviction, which would make it a terrible thing for defendants. But is this “meteor strikes earth, women and minorities most affected”? What if Oregon changes its jury rules so that only unanimous verdicts were required in the trial of minority defendants, putting aside that this would be facially unconstitutional? Is it beneficial to reform to cast every issue as a discrimination problem?

45 comments on “Tuesday Talk: A Unanimous Verdict?

  1. Billy Bob

    I don’t think you’re reading the second point of the editorial correctly. How does “minority viewpoints” get translated into viewpoints of minorities? That is a very big linguistic leap of faith (?). You’re assuming that the minorities–whoever they might be–are assuming identical “viewpoints.” Bad assumption!

    You’re a little off today: Terrible Tuesdays? Tomorrow, you regale us with Wacky Wednesdays! It’s an interesting hypothetical, but no likely, we think.

    1. SHG Post author

      You know how often I say to myself, “I sure hope Bill posts the first comment and sets the tone for discussion”?

      1. LocoYokel

        I am also wondering if the phrase “minority viewpoint” might refer to the fact than only 1 or 2 of the jury might hold that belief rather than the whole group of 12. This would then be limiting the ability of just one juror to hang the jury and cause a mistrial or force a not guilty verdict rather than having an unanimous verdict, regardless of whatever SJW fad of the moment might be in effect.

  2. Stan Wolczyk

    Has the intellectual rot seeped so deep in minds of practitioners of identity politics that they can’t champion an issue that benefits all?
    Would their fellow travelers shame them if they didn’t include some divisive drivel?

    Hopefully the Oregon legislature is not distracted by identity politics and makes reforms for all.

    1. PseudonymousKid

      It isn’t as if the op-ed is only championing the issue because of the identity of those affected. That’s simply the topic. It presents two scenarios which it claims were directly connected to the changes in law that were motivated in part by consideration of race. It’s important to recognize why the law was changed in the first place when arguing to switch back. Context and all. It still doesn’t mean that curing racism needs to be the primary motivation of switching back now.

      Simply acknowledging the history and taking it into consideration as part of an argument for change is not identity politics or a distraction. Hopefully, the Oregon legislature considers all relevant circumstances and makes the best decision for the residents there.

      1. SHG Post author

        Is it the history? They’ve certainly made it appear so, though scrutiny suggests it might not mean what it appears to mean. Does adding the word “simply” before it make it simple? Does this provide context, or does this pander to unprincipled to back it for the wrong reasons? Could that every go awry?

        1. PseudonymousKid

          Yep. “Simply” is weak and doesn’t do anything. It’s a bad habit.

          Yes, choosing to couch the issue in terms of historical racism is narrow minded and ignores the reality of the issue. The decision may say more about the author and what’s going on now than what actually happened then. It’s like you seeing things that aren’t there when you imbue the article with an agenda. You’re on your mighty steed charging at windmills again.

          Of course this sort of focus could go awry. It is already, but this article isn’t symptomatic of the underlying disease.

          1. SHG Post author

            We could always resort to the methods of pain compliance used to break you of your youthful enuretic issues, but we trust you can address your bad habits on your own these days.

  3. maz

    “That’s one issue, but the editorial doesn’t stop there, In fact, this is merely the preface to its real point.”

    Well, not really: The editorial’s point is states should no longer be allowed non-unanimous convictions for at least four reasons: juror unanimity has long been the ‘gold standard’ of jurisprudence; the Supreme Court recognizes a Constitutional right to unanimity at the federal level; non-unanimity historically (where n = 2) was introduced in order to minimize the potential influence of minority jurors; and non-unanimous verdicts unfairly favor the prosecution. It then goes on to express hope the Court will use the case of a white felon convicted by a 10-2 vote to end non-unanimity. It makes no claim that non-unanimity is necessarily harmful to minority rights, only that it originated as a means to silence minority participation. (The only time minorities are mentioned other than historically is in the phrase “[b]eyond the consideration of racial and ethnic bigotry….”)

    For that matter, it’s a mischaracterization to speak of anything in the article as being a ‘preface’ to its discussion of non-unanimity and minority representation: From the editorial’s title and opening sentence onward, it’s clear the discussion will be couched in terms of the history behind this bad idea. While one may question the rhetorical wisdom of such an approach — personally, I feelz it would have been stronger to focus on the present-day harm caused by non-unanimity, with the history lesson subjugated to a subsidiary paragraph in support of the third point — I don’t read the editorial as pandering to an SJW readership.

    1. David Meyer-Lindenberg

      Maybe it’s just that I’m on so many painkillers, but I agree with maz. Also, is there really any difference between the Mail-Tribune’s “rhetorical wisdom” and what we do when we point out that campus-rape tribunals put black and Hispanic men at particular risk?

      1. SHG Post author

        When good ideas are promoted for the wrong reason, it both reinforces the wrong reason, which will potentially be applied to lesser ideas, as well as create a construct that fixes the wrong reason at the potential expense of the right reason. Is that a problem?

        So you brought the pain bong home?

        1. David Meyer-Lindenberg

          Alas, my opioid days are behind me. These conventional pills just don’t pack the same, you know, oomph.

          Sure, but is the Mail-Tribune promoting good ideas for the wrong reason? Or is it promoting them for the right reason while using the race card as an ancillary argument? If it’s the latter, as maz, PK and I seem to think it is, there isn’t much of a deontological problem. It’s important to guard against getting sidetracked by trendy arguments, but I don’t think that means those making the case for change are obligated not to use them at all lest their supporters choose to back them for ideologically impure reasons.

          rb;gb principle in stating a case is more important than principle in supporting it. If a trendy arg picks up some more groundlings, and those making it aren’t primarily motivated by the trendy arg, so what?

          1. SHG Post author

            While I’m hardly as certain that your cohorts are as ideologically pure, is it correct to say that the use of false but trendy arguments to achieve a principled outcome does no harm? After all, certainly no reasonable person would be against taking action to end the bight of rape and sexual misconduct, but if the arguments in support of that position compel us to do away with due process to achieve that lofty goal, is there no harm, no foul?

            You might recognize that the argument is unprincipled and used to manipulate the groundlings, but what do the groundlings think? Remember, there are a lot more of them than you, and should the mob get up a head of steam, do you think your brilliant and principled stance will stop them from burning down your castle?

            1. David Meyer-Lindenberg

              Wait. Before, your complaint was that the identitarian arg is myopic. Now it’s false? If it’s false, honesty compels us not to use it. And if it were actively incompatible with our lofty goal, as you suggest it might become if taken far enough, we’d be obligated not to use it for principle’s sake. But if it’s merely beside the point, as I thought you were saying up until now, then there’s no reason in principle why we shouldn’t use it. It wouldn’t move the deontological needle either way.

              Will the groundlings seize on our beside-the-point trendy args and bring everything crashing down around our ears? Maybe. We’ve got to weigh that risk against the upsides of support now. But that’s a utilitarian debate and no longer one rooted in principle.

    2. SHG Post author

      You’ve indulged in a bit of confirmation bias plus conflating cause and effect. Correlation does not prove causation. Are you sure that non-unanimous verdicts were because of religious animus? Could it have been outrage at a defendant everyone was certain was guilty getting away with it, and religion wasn’t the real problem?

      And even if it was antisemitism, did its application not inure to the detriment of everyone? Are there not more white defendants convicted in absolute numbers than blacks, or Jews? And if that’s the case, is attempting to construct a social justice rationalization for why this is a problem merely pandering nonsense? Is it not sufficient that it’s a bad doctrinal idea for everyone, without indulging in the effort of justifying it through fashion trends? If it was a product of antisemitism, was that not the same problem of pandering to the mob, but with a different fashion trend at the time?

      1. Sgt. Schultz

        It’s almost as if you’re trying to force people to think harder. Have you left no shred of human decency?

  4. Christopher Best

    Huh. I’ve been in Oregon for a little over four years now and didn’t know about this One Weird Trick of criminal law here. Then again, I was born and spent most of my life in Louisiana and I’m not sure I knew it about my home state, either.

    As to the article… God, I hate the use of the phrase “minority viewpoints” here. I’m not a SJW, so I assume the obvious meaning of the phrase to be “a viewpoint not held by the majority of jurors.” But reading the entire article, there’s no way the author meant that in context. Bleh.

    Oregon finally managed to get rid of the part of their Constitution that outlawed “mulattoes and negros” from living in the state in 1926, 8 years before this change to juries was made. I suppose it’s *possible* that the citizenry had managed to move past discriminating against blacks legally but still were still willing to make hatred of Jews the literal law of the land, but it seems more likely that our esteemed host’s prior suggestion was more likely: they were upset a guy who they thought did it got off on a “technicality.” After all, even the President only requires a simple majority to be elected…

    This should be an important lesson to folks (myself included) who’s rage over the latest obviously guilty cop walking free tempts them to monkey with the system. Rights are universal.

  5. Elpey P.

    “The non-unanimous verdict clearly facilitates conviction, which would make it a terrible thing for defendants.”

    Let’s replace “defendants” with “Cosby” in this sentence and run it by Twitter.

    1. Jason K.

      Blackstone 2.0: It is better that a thousand potentially innocent people go to prison than 1 obviously guilty person go free.

  6. Davis C.

    Given the history of the Louisiana law, at least, it makes sense to push for repeal or invalidation on the grounds that it’s a holdover from the Jim Crow era. Of course, the law screws over criminal defendants in general and is bad for that reason, but the editorial is doing more than making an argument about the merits of the policy. The law is part of the legacy of Jim Crow, and calling attention to that can help Americans to see how racism has affected the development of our institutions and how we might need to counteract the influence of racism. If the same law were introduced in a different historical context, though, there would be no reason to make the discussion about race.

        1. SHG Post author

          And how does one know they perpetuate the legacy of Jim Crow? If they are enacted for sound, non-discriminatory reasons, but work a disparate impact on minorities? Pretty much every criminal law does that. Loose language like “legacy of Jim Crow” only works if you don’t think too hard about it. Law requires thinking.

          And I emphasize, correlation does not prove causation. Watch out for logical fallacies.

          1. Davis C.

            Of course there are borderline cases, but the Louisiana law isn’t one of them. It was clearly enacted with the intent and effect of getting around the requirement that blacks be allowed to serve on juries. Laws that perpetuate the legacy of Jim Crow are laws that had the intent and still have the effect of erasing legal protections for blacks.

            1. SHG Post author

              Using the word “clearly” doesn’t make it so. Keeping blacks off juries is easy, and still done by prosecutors everywhere. Just use a peremptory challenge, problem solved. And just to be clear, putting blacks on juries doesn’t mean they won’t convict as fast as anyone else. Don’t impose a racist vision that blacks are a monolith or are more lawless than whites.

            2. Davis C.

              For the sake of argument, let’s stipulate that the evidence pointed to in the article about the purpose of the law is representative of public opinion regarding the law at the time. I recognize that this may not be the case. But if it is, then it makes sense to talk about the history of the laws when arguing for their repeal, and not only their current effect. At least in some circumstances (i.e. circumstances where the evidence shows that a law had the purpose of depriving blacks of legal protections), the historical context surrounding the enactment of a law is an important talking point in the discussion about whether it should be repealed.

              And my point isn’t that blacks are more lawless or less likely to convict in general, but that they were more likely to serve as a check on a mostly lawless system that was already stacked against blacks anyway. Nowadays, the idea isn’t so much that getting black people on juries might reduce conviction rates if it weren’t for the lack of a unanimity rule, but that failing to require unanimity still violates defendants’ due process rights.

  7. Grum

    Well, let me “scream at the top of my lungs”. I didn’t read “Secondly, both Oregon’s and Louisiana’s non-unanimous verdict rules originated in attempts to limit the ability of minority viewpoints to sway jury verdicts.” as referring to minorities in the sense of race or identity or whatever, rather that it referred to a minority of the jury being unconvinced by the evidence presented for conviction as being beyond reasonable doubt.
    If convincing the jury of that, however composed, to the extent that all of them can agree on it, then that seems to be something worth holding on to. Otherwise it’s just arbitrary; where do you stop?
    Surely the burden should rest with the “people”, or over here, the Crown. If they can’t manage that without chiselling, then fuck ’em. They have it easy enough already. Not your side of the pond, so may be unaware of nuance, etc.

    1. SHG Post author

      I think, in that sentence, minority refers to the minority view on the jury, not to race, etc. With a non-unanimous jury, say 10 to convict, who cares it 2 aren’t buying. You can lose 2 and still convict. That, I believe, is what they’re talking about here.

        1. SHG Post author

          I think it’s used both ways at differing points, which explains the muddiness. English is a blunt language when used poorly. American is even worse.

    2. Christopher Best

      Out of context, I read it your way. In the context of the entire article, I can’t see how the author meant it any other way than ‘minority’ referring to a type of person rather than a type of opinion. And that’s even considering the recent trend to not consider Jews as true ‘minorities’ on the hierarchy of victim-hood.

      1. SHG Post author

        If that’s the reading in that specific sentence, the sentence makes no sense. As I said to Grum, the word seems to be used interchangeably, so the confusion is built in to the poor writing.

  8. B. McLeod

    When a sixth of the jury won’t convict, that should be taken as indicative there is “reasonable doubt.” Convicting with two jurors in opposition is as inappropriate as charging some poor bastard with a crime when four of nine Supreme Court Justices don’t think the statute extends to the defendant’s conduct.

  9. Tice with a J

    Karolina Skog, Sweden’s Minister for the Environment, felt compelled to comment on how cars disproportionately benefit men. While discussing the general inefficiency of cars and Sweden’s plans to reduce emissions, she threw in this (translated from Swedish by Google):

    “The car is largely driven by men. By giving the car a lot of space, we also give men space – at the expense of women”
    (From an interview in GP, Mar 8, 2017)

    It is the way of the modern Left to make everything about discrimination. But I can’t blame them too much. The Left is made up of humans, and humans are short-sighted. Everything is about the issue du jour. If they were on the Right, every issue would be about Jesus or government intervention or something. But they are Left, so discrimination it is. This isn’t helpful at all, but they’ll do it anyway.

    1. PseudonymousKid

      This is what it appears our dear host was trying to get at. That even describing the issue of non-unanimous jury convictions in light of historical discrimination was evidence of a social justice agenda. Correlation may not prove causation, but it might produce a lazy but interesting piece on the only two states that do things differently. Sure, it could be nefarious if you think there is some sort of overarching goal the author and those like him are trying to achieve. It’s more likely an attempt by a non-lawyer at answering the obvious question most would have when told only two states do anything differently. “Why?”

      Your car example would have been better. That’s just silly, but I’m very sad that you think Ms. Skog represents the modern Left in any sense.

  10. Clay S. Conrad

    The real discrimination here is that it is anti-defendant. But when minority members are significantly more likely, for the same behavior, to wind up in criminal court, anything that is anti-defendant is anti-minority.

    The non-unanimous verdict is a bad idea. So are racist criminal justice outcomes. However, they have to be fixed separately: addressing one won’t have any significant effect on the other.

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