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Louisiana and Oregon are the only states that permit criminal convictions in felony cases with non-unanimous juries.
Case in Point

A Vestige of Bigotry

The Supreme Court and non-unanimous juries.

The challenge to the Trump administration’s travel ban has been pulled from the Supreme Court docket for now, but the justices still have an opportunity this coming term to confront a high-profile case that raises direct questions about racial or religious animus.

The court has been asked to overturn its own precedent and invalidate a Louisiana law that permits criminal convictions in felony cases where a jury is not unanimous in finding guilt. Only two states — Louisiana and Oregon — employ the non-unanimous jury rule in these cases. The Louisiana law was enacted by white supremacist lawmakers in 1898 in response to the enactment of the Fourteenth Amendment, which was supposed to guarantee the right to vote — and thus the right to serve on juries — to blacks.

By allowing convictions in instances where jurors split, these legislators reckoned, they could essentially nullify the votes of the few blacks here and there who would be allowed to serve on juries.

Louisiana’s leaders were not shy back then about the rationale behind the jury rule. The stated mission behind the 1898 Constitutional Convention that generated the jury rule was to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” That law, part of a series of laws designed to disenfranchise blacks after the Civil War, is still on the books 119 years later in a state that perennially leads the nation in incarceration rates, racial disparities in criminal justice, and wrongful convictions.

In Oregon, the non-unanimous jury rule was the result of an extraordinary expression of religious and racial animus in the mid-1930s. A Jewish man had been charged with murdering a Protestant and a lone holdout spared the defendant a death sentence at his 1933 trial. One year later, Oregon voters passed a measure allowing for a 10-2 jury split. Like the Louisiana rule, the Oregon rule was designed to reduce the risk of acquittals or mistrials. It was more “efficient,” prosecutors argued.

The petitioner asking the justices to end all this is a man named Dale Lambert. He is sitting today in a state prison serving a life sentence for second-degree murder even though two of the 12 jurors who evaluated the evidence in his case concluded that prosecutors had not met their burden of proof beyond a reasonable doubt. Louisiana is so confident that the justices won’t accept the case for review and upset the state’s jury scheme that its attorneys didn’t even bother to file a brief opposing the request by Lambert’s attorneys that the high court take up the case.

The general rule requiring unanimous juries goes back hundreds of years, long before the founding of the Republic and the signing of the Constitution in 1787. The requirement was included in a draft of the Sixth Amendment, and while it was omitted from the final version there had never been much doubt among judges and legal scholars of the time (and since) that the Constitution required unanimity. “I answer unhesitatingly that no court of the United States… can sentence any man upon the return of a verdict of jury in which all of the jury have not concurred,” wrote Justice John Marshall Harlan.

“Of the United States” was the key phrase in Harlan’s quote. The unanimity rule always has extended to deliberations in federal cases. The question through the ages has been whether the guarantees of the Sixth Amendment should be incorporated into state law. In 1968, in Duncan v. Louisiana, the Supreme Court answered that question “yes.” But four years later, in Johnson v. Louisiana, the justices in a sharply-divided opinion endorsed the Louisiana non-unanimous rule — with barely a mention of the rule’s racist roots.

The Johnson court concluded that the reliability of convictions was not tainted by the non-unanimous jury rule. If there was enough evidence to convince 9 or 10 jurors of guilt beyond a reasonable doubt, the justices reasoned, it was enough to satisfy the due process requirements of the Constitution.

At the same time as the Johnson ruling, the court decided Apodaca v. Oregon, a schizophrenic 4-1-4 decision. The court’s most conservative justices concluded that unanimous jury verdicts were not required either in state or federal trials. The court’s liberal justices concluded that unanimous jury verdicts were required in both federal and state cases. Justice Lewis Powell broke the tie and split the baby. He ruled that the Sixth Amendment required unanimity in federal cases but did not apply to state cases.

The case against Lambert, like many criminal cases, is neither very weak nor very strong, which is probably why his jury was unable to come up with a unanimous verdict in the first place. There was no confession. There was no compelling physical evidence linking the defendant to the crime scene. (Cell phone records, for example, were inconclusive.) The murder took place on March 22, 2013 during an alleged drug deal in Orleans Parish. One of the victims, a man named Kerry Jones, who was shot in the leg, was unable to identify Lambert the first time he was asked to do so during a police lineup.

The second time Jones was shown a lineup he said he was 65 percent certain that Lambert was the shooter. Why 65 percent? Jones was asked on the witness stand during the trial. “I was really one hundred percent sure, but I said sixty-five percent because I hadn’t decided that I wanted, you know, to testify, or you know, or do a little street justice.” This witness, and another witness who testified that she was “90 percent” sure Lambert was the culprit, formed the backbone of the case against Lambert. A case that would have resulted in a deadlocked jury, a mistrial or an acquittal in every other state save one.

Lambert’s attorneys didn’t wait for their client to be convicted before they started arguing that the state’s non-unanimous jury rule violated his constitutional rights. They made the argument to the trial judge and were rebuffed. They made the argument to an appellate court and were rejected there as well. The Louisiana Supreme Court eight years ago made it clear it has no intention of undermining the rule unless it is ordered to do so by the justices in Washington.

Lambert’s lawyers have grounded their pitch to the justices in a way they hope entices the court’s four liberals and perhaps one or two of its conservatives to come to the rescue. It’s not just the racist origins of the Louisiana rule that renders it unconstitutional today, the lawyers argue, it’s the evolution in the way the justices themselves have viewed the jury’s work over the past 20 years or so that makes this the right moment for this case to be heard.

And guess who would play the starring role if the case were accepted for review? The late Justice Antonin Scalia, the conservative guardian of the Constitution’s original intent.

Lambert’s lawyers point out that Justice Scalia signed on to Apprendi v. New Jersey, a 2000 decision in which the justices recognized that the Sixth Amendment and Fourteenth Amendment, taken together, entitled a defendant to a jury’s finding of guilt beyond a reasonable doubt as to every element of every charged crime. Judges couldn’t enhance sentences based on facts that were not vetted by jurors in this way. Likewise, it was Justice Scalia who authored the 2004 Crawford v. Washington decision in which the justices embraced an historical view of the Confrontation Clause of the Fifth Amendment to expand the rights of defendants in criminal cases.

Lambert’s lawyers also reminded the justices that their controversial decision in McDonald v. Chicago, the 2010 decision in which the court extended the personal right to bear arms to state laws, also supports the view that what ought to count most when evaluating unanimous jury verdicts is the historical view that goes back hundreds of years before the Constitution was ratified, and not the relatively new Louisiana rule that ignores them. All of those decisions — coming decades after Johnson and Apodaca — embrace a view of defendant’s rights that seems to squarely support Lambert’s cause. And all of those decisions found conservative support on the court.

This is why so many of the academics who have studied these jury rules and the legal issues they raise believe there is a decent chance the justices will take the Lambert case and rid the country of two more vestiges of its racist past. Angela Bell, a professor at Southern University Law Center, who has written extensively on the topic, says a “vast amount of research on group thinking” since the Supreme Court blessed non-unanimous juries in 1972 “suggests that unanimous juries are more evidence-driven (as opposed to verdict-driven) and that unanimous verdicts are more reliable, more careful, and more thorough.” That research, she says, led the American Bar Association to change its position on the subject; the ABA standard now requires unanimous verdicts. It also has convinced the 48 states that require unanimous juries not to switch to the Louisiana and Oregon models. It’s time, Bell says, for the justices to act.