It looks like I'm going to succeed in publishing this "preview" before the Court manages to put out a transcript of it, but the argument has either already happened or is about to do so (I'm not sure of the timing of the argument for this third case of the opening day). Thankfully, this is a relatively straight-forward case. Indeed, the briefs by the parties take up no more than about 30 pages combined when you get past all of the procedural things that need to be included, and that is rare indeed.
The question presented in this case is whether a state may convict a defendent with a less-than-unanimous jury verdict. The defendant here was convicted of murder in Louisiana with a 10-2 jury verdict. Only Oregon and Louisiana currently use a system that allows non-unanimous juries to convict a defendant, and Louisiana is actually moving away from that system, with a unanimous jury being required for conviction of any crime allegedly committed in 2019 or later. Within a couple of years, therefore, this will be an issue more of historical interest in Louisiana - although people convicted with a less-than-unanimous jury from previous years will not likely have any recourse.
There are essentially two arguments for the position that jury verdicts must be unanimous. The first is that somehow, the concept of unanimity was wrapped up in the right to trail by jury found in the Sixth Amendment to the US Constitution and incorporated against the states through the 14th Amendment Due Process Clause. Louisiana argues, however, that there is no explicit protection for unanimous verdicts in the Constitution - and that this was quite intentional as not everyone harbored a desire for jury unanimity. A 10-2 or 9-3 vote, after all, can still provide a reasonable level of certainty in the fairness of the verdict while also being better from an administrative standpoint as it lessens the likelihood of a hung jury. Citing legislative history and some additional extraneous sources, Louisiana says that there is a clear decision to reject a unanimity requirement and to instead leave the question for the States to decide.
Louisiana also lies heavily on a stare decisis argument. Stare decisis, or "let the prior decision stand," is a doctrine that binds the Court (to the extent it chooses to be bound) to previous decisions for a variety of purposes, primarily legal certainty and reliance and the decisions. Longevity of a decision plays a role, as does unfairness to a party that would perhaps prevail if the decision was just coming up for a decision now rather than years previously. The previous case on point for this issue is Apodaca v. Oregon (1972), which for 47-years has stood for the proposition that the States are free to utilize less-than-unanmious jury verdicts for convictions of state law. With nothing fundamental in our understand of the doctrine having changed in those 47 years, Louisiana argues there is no reason to overturn Apodaca.
Yet, Apodaca is by no means perfect. It's controlling decision was essentially made by a plurality of four Justices rather than a majority, due to deeply splintered lines around the question. Some Justices felt the 6th Amendment required unanimty of juries, but would not incorporate that right against the states. Others would require unanimity and would incorporate it. For others, there was no reason to say the 6th Amendment protected the right at all. It is on this rickety foundation that Louisiana hangs its stare decision argument.
While I personally would like to see a unanimity requirement for jury trials, there is plenty of evidence to suggest that this issue was considered and ultimately not decided on. That means the 6th Amendment alone isn't enough to find a right to a unanimous jury - and instead we would have to hope for a new substantive due process right under the 14th Amendment to be established ... by a conservative-leaning Court that doesn't like establishing new rights. That seems like wishful thinking in the extreme to me.
I'm going to project a 6-3 decision on this one in favor of Louisiana and preserving the right of a state to convict with less-than-unanimous juries. Justice Brett Kavanaugh will write the majority opinion, with Justice Breyer pulling over to the right-leaning side of the argument.
The question presented in this case is whether a state may convict a defendent with a less-than-unanimous jury verdict. The defendant here was convicted of murder in Louisiana with a 10-2 jury verdict. Only Oregon and Louisiana currently use a system that allows non-unanimous juries to convict a defendant, and Louisiana is actually moving away from that system, with a unanimous jury being required for conviction of any crime allegedly committed in 2019 or later. Within a couple of years, therefore, this will be an issue more of historical interest in Louisiana - although people convicted with a less-than-unanimous jury from previous years will not likely have any recourse.
There are essentially two arguments for the position that jury verdicts must be unanimous. The first is that somehow, the concept of unanimity was wrapped up in the right to trail by jury found in the Sixth Amendment to the US Constitution and incorporated against the states through the 14th Amendment Due Process Clause. Louisiana argues, however, that there is no explicit protection for unanimous verdicts in the Constitution - and that this was quite intentional as not everyone harbored a desire for jury unanimity. A 10-2 or 9-3 vote, after all, can still provide a reasonable level of certainty in the fairness of the verdict while also being better from an administrative standpoint as it lessens the likelihood of a hung jury. Citing legislative history and some additional extraneous sources, Louisiana says that there is a clear decision to reject a unanimity requirement and to instead leave the question for the States to decide.
Louisiana also lies heavily on a stare decisis argument. Stare decisis, or "let the prior decision stand," is a doctrine that binds the Court (to the extent it chooses to be bound) to previous decisions for a variety of purposes, primarily legal certainty and reliance and the decisions. Longevity of a decision plays a role, as does unfairness to a party that would perhaps prevail if the decision was just coming up for a decision now rather than years previously. The previous case on point for this issue is Apodaca v. Oregon (1972), which for 47-years has stood for the proposition that the States are free to utilize less-than-unanmious jury verdicts for convictions of state law. With nothing fundamental in our understand of the doctrine having changed in those 47 years, Louisiana argues there is no reason to overturn Apodaca.
Yet, Apodaca is by no means perfect. It's controlling decision was essentially made by a plurality of four Justices rather than a majority, due to deeply splintered lines around the question. Some Justices felt the 6th Amendment required unanimty of juries, but would not incorporate that right against the states. Others would require unanimity and would incorporate it. For others, there was no reason to say the 6th Amendment protected the right at all. It is on this rickety foundation that Louisiana hangs its stare decision argument.
While I personally would like to see a unanimity requirement for jury trials, there is plenty of evidence to suggest that this issue was considered and ultimately not decided on. That means the 6th Amendment alone isn't enough to find a right to a unanimous jury - and instead we would have to hope for a new substantive due process right under the 14th Amendment to be established ... by a conservative-leaning Court that doesn't like establishing new rights. That seems like wishful thinking in the extreme to me.
I'm going to project a 6-3 decision on this one in favor of Louisiana and preserving the right of a state to convict with less-than-unanimous juries. Justice Brett Kavanaugh will write the majority opinion, with Justice Breyer pulling over to the right-leaning side of the argument.
