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Apodaca v. Oregon, 406 U.S. 404 (1972), was a United States Supreme Court case in which the Court held that state juries may convict a defendant by less than unanimity ^[1] even though federal law requires that federal juries must reach criminal verdicts unanimously. ^[2] The four-justice plurality opinion of the court, written by Justice White, affirmed the judgment of the Oregon Court of Appeals, and held that there was no constitutional right to a unanimous verdict. Thus Oregon's practice did not violate Sixth Amendment right to trial by jury, and was allowed to continue. In a companion case decided on the same day, the Court held that Louisiana's similar practice of allowing convictions by a jury vote of 9-3 did not violate due process or equal protection under the Fourteenth Amendment. ^[3]

Justice Powell, in his concurring opinion, argued that there was such a constitutional right in the Sixth Amendment, but that the Fourteenth Amendment's Due Process Clause does not incorporate that right as applied to the states. This case is part of a line of cases interpreting if and how the Sixth Amendment is applied against the states through the Fourteenth Amendment for the purposes of incorporation doctrine, although the division of opinions prevented a clear-cut answer to that question in this case.

Although both Oregon and Louisiana's practices of non-unanimous jury verdicts were upheld by the Supreme Court, Louisiana has since passed a state constitutional amendment that requires jury unanimity in criminal cases. ^[4]

Arguing the case for the state of Oregon were Jacob Tanzer and Lee Johnson; both would later serve on the Oregon Court of Appeals.

Background on non-unanimous jury verdicts

Federal law requires that juries return a unanimous verdict—one that all members of the jury agree upon—in criminal trials. ^[5] While most states follow the same requirement for felony convictions, at the time when Apodaca reached the U.S. Supreme Court, both Oregon and Louisiana did not require state court juries to return unanimous verdicts. ^[6] Oregon had created this rule in 1934 by state constitutional amendment. ^{[7] [8]} Specifically, as long as at least 10 jurors on a 12-member jury agreed, the jury could render a verdict of guilty or not guilty. ^{[9] [6]} First-degree murder cases in Oregon courts, however, still would require a unanimous jury verdict. ^[6] Louisiana had passed a similar constitutional amendment in 1880. ^[6] However, in 2018, Louisiana voters passed a new constitutional amendment that ended their practice of non-unanimous juries. ^[4] Now Oregon is the only state that allows non-unanimous jury verdicts for felonies (other states allow them for misdemeanor offenses). ^[10]

Case facts and procedural posture

Robert Apodaca, Henry Morgan Cooper, Jr., and James Arnold Madden, were convicted of assault with a deadly weapon, burglary in a dwelling, and grand larceny, respectively, in separate trials in Oregon state court. ^[11] All three juries returned non-unanimous verdicts: Apodaca and Madden's juries voted 11-2 to convict, and Cooper's jury voted 10-2. ^[11] They appealed their convictions to the Court of Appeals of Oregon, arguing that they were entitled to have the jury instructed that jurors must unanimously agree to convict. ^[12] The Court of Appeals of Oregon, sitting in banc, affirmed their convictions. In doing so, the court relied on a previous Oregon Supreme Court case, State v. Gann, 254 Or. 549 (1969), ^[12] that had upheld the provision of the Oregon Constitution allowing the 10-2 jury practice as not a violation of the Fourteenth Amendment. ^[13] The Oregon Supreme Court denied review, and the three sought review in the United States Supreme Court.

In Johnson v. Louisiana (a case decided by the Supreme Court on the same day as Apodaca), a criminal defendant in Louisiana raised the same issue: whether a less-than-unanimous jury verdicts in state court criminal cases violates a defendant's constitutional rights. ^[14] Frank Johnson was convicted of armed robbery by a jury verdict of 9-3 by a Louisiana state court jury, which was permissible under Louisiana law. However, unlike in Apodaca, where petitioners argued that this practice violates their Sixth Amendment right to a jury trial (as incorporated by the Fourteenth Amendment ^[15]), the petitioner in Johnson raised Fourteenth Amendment equal protection and due process claims. ^[3] The Supreme Court of Louisiana affirmed his conviction, holding that a 9-3 jury verdict did not violate his due process or equal protection rights. ^[16] Johnson petitioned the U.S. Supreme court for review.

Both Apodaca and Johnson were argued before the Supreme Court on March 1, 1971, and reargued on January 10, 1972. ^[17] The Court decided both cases on May 22, 1972, and upheld the Oregon and Louisiana non-unanimous jury convictions. ^[17]

U.S. Supreme Court decision and reasoning

First, the Supreme Court held that the constitutional right to trial by jury found in the Sixth Amendment ( made applicable to the states by through the Fourteenth Amendment ^[15]) was not violated by a less-than-unanimous jury verdict in state criminal court. ^[18]

The Court likened jury unanimity to the 12-person requirement for juries. In Williams v. Florida, ^[19] decided just four years before Apodaca, the Court held that Florida's refusal to impanel more than six members for a jury trial did not violate the defendant's Sixth Amendment rights. Although the Court in Williams recognized a long common law tradition of having 12-member juries, it stated, "[w]e conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident." ^[20] The Court in Apodaca drew parallels between the 12-member requirement and the unanimous requirement: both "arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century." ^[21] And yet neither a 12-member jury nor jury unanimity, the Court held, were constitutional requirements.

In its reasoning, the Court recognized, as it did in Duncan ^[15] and Williams, ^[20] that the purposes of a jury included to "safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge," and to inject into the trial "commonsense judgment of a group of laymen." ^[22] But the Court found that these purposes could still be accomplished even if a jury returned a less-than-unanimous verdict. Instead, requiring unanimity would simply produce more hung juries. ^[23] The Court also rejected the argument that unanimity would protect the reasonable-doubt standard. If some jurors voted to acquit, the petitioners argued, they could not have been found guilty beyond a reasonable doubt. But the Court rejected the idea that this requirement is found in the Sixth Amendment, because the reasonable-doubt standard arose after the Constitution was written and is instead rooted in due process. ^[24]

Second, the Court also held that jury unanimity is not mandated by the requirement from the Fourteenth Amendment that racial minorities could not be systemically excluded during voir dire, the process by which jurors are chosen for a trial. ^[25] Petitioners had argued that allowing non-unanimous jury verdicts skirts the requirement to not exclude minorities in that it could simply out-vote minority members of the jury with a 10- or 11-person majority. In rejecting this argument, the Court first said that defendants do not have a right to members of their community on their particular jury, but rather that minority members simply cannot be systematically excluded from juries. Next, the Court said that even if racial minorities found themselves in a jury minority, their voices would be heard by the rest of the jury and that there is "no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence." ^[26]

Concurrences and dissents

The four-justice plurality decided that federal and state juries should operate in the same way—and that the constitution does not require jury unanimity in either court system. The four dissenting justices agreed that federal and state juries should abide by the same rules—but argued that the constitution does require jury unanimity. Justice Powell concurred with the plurality opinion, determining that the Sixth Amendment mandated jury unanimity in federal trials but not in state trials because he found that the Fourteenth Amendment did not incorporate that right as applied to the states. ^[6]

Because Apodaca and Johnson presented the same question, the Court decided both cases on the same day and some of the justices' opinions apply to both cases. In Apodaca, Justice White wrote the plurality opinion of the court, which was joined by Chief Justice Burger, Justice Blackmun, and Justice Rehnquist. ^[27] Justice Stewart dissented, and Justice Brennan and Justice Marshall joined that dissent. ^[28] Similarly, in Johnson, Justice White wrote the opinion of the court, ^[29] and Justice Stewart filed a dissenting opinion, which Justice Brennan and Justice Marshall joined. ^[30] There were five other written opinions that applied to both Apodaca and Johnson. Justice Blackmun and Justice Powell each wrote a concurring opinion; and Justices Douglas, Brennan, and Marshall each wrote a dissent (Justice Douglas's dissent was joined by Justice Brennan and Justice Marshall; Justices Brennan and Marshall joined each other's dissents). ^[31]

Controversial history

Recent scholarly debate has focused around the historical origins of Oregon and Louisiana's less-than-unanimity jury practices.

Oregon's constitutional amendment was put on the ballot ^[7] a year after a lone holdout juror prevented a Jewish man from being found guilty of murdering a Protestant one. ^[10] On Nov. 25, 1933, the day after the jury convicted on the lesser offense of manslaughter (resulting in a three-year sentence), The Morning Oregonian "railed against the juror in an editorial tinged with racist undertones and nativist fervor," in which the editors wrote that "the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory." ^{[10] [32]} Previous editorials around the same time "bemoaned 'mixed-blood' jurors and lamented the role that some immigrants played on juries, questioning their 'sense of responsibility' and 'views on crime and punishment.'" ^[10] The Oregon constitutional amendment passed on May 18, 1934. ^[8]

In the 1990s, an Oregon study found that too few minorities were called for jury duty, fewer served on juries, and preemptory challenges were being used based on race. ^[33] And other studies show that non-unanimous juries make it more likely that minority members on a jury can be out-voted. ^[34] The Supreme Court in Apodaca had considered this issue, but hypothesized that the majority would still carefully consider the objections of minority jurors before overruling them. ^[35] The Court further lent support to the states' non-unanimous jury verdict systems by saying that they helped prevent hung juries with holdouts who refuse to convict–or acquit. Because this rule can go either way, it could benefit some defendants who will be acquitted of a crime instead of having to go through another trial. ^[35]

Louisiana's legislature changed its Code of Practice to allow for non-unanimous jury verdicts in 1880, during the Jim Crow era. Louisiana's white land owners struggled to replace free slave labor, and the state began leasing convicts to plantation owners. ^{[36] [37]} During the 1898 Louisiana constitutional convention, the Louisiana legislature ratified the split verdict law, making it possible to convict defendants on a jury verdict of 9-3. ^[38] This, in turn, created more convicts (especially freed blacks), and thus increased the numbers available for for-profit convict leasing. ^[36]

Although Apodaca and Johnson are still good law, Louisiana officially ended its non-unanimous jury verdict system by constitutional amendment in 2018. ^[4] Scholars and politicians have argued that Oregon should also end its practice. ^{[6] [39]}

References

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