Sometimes counting to five is more complicated than you’d think.  Imagine a case before the Supreme Court in which a criminal defendant challenges his state court conviction on the ground that he was convicted by a non-unanimous jury.  Assume that five Justices conclude that the Sixth Amendment requires a unanimous verdict to convict, and that eight Justices conclude that the Sixth Amendment applies to criminal convictions in state courts.  You’d probably think the outcome in that case is obvious.  But you’d be wrong.   

In Apodaca v. Oregon, the Supreme Court upheld the convictions of three defendants who had been convicted by non-unanimous juries in Oregon courts, even though a majority of the Justices concluded that non-unanimous jury verdicts violate the Sixth Amendment and a majority also concluded that the Sixth Amendment applies to state court convictions.  The reason for this anomalous result: Justice Powell’s odd vote.  Although Justice Powell disagreed with the four Justices who concluded that the Sixth Amendment does not require unanimous verdicts, he still voted to uphold the convictions.  Why?   He—alone among his colleagues and in contravention of existing precedent—did not believe the Sixth Amendment applied fully to the states.  As a result of his critical fifth vote, the convictions of the three defendants in that case were upheld even though juries of their peers did not unanimously agree that they were guilty. 

Now, forty years later, Apodaca’s rule without a rationale remains good law, and defendants in Louisiana and Oregon—the two states that allow non-unanimous jury verdicts—continue to be convicted by non-unanimous juries.  That alone is disturbing.  And what is even more disturbing is that neither of the two conflicting justifications for the Court’s decision in Apodaca makes any sense in light of the Supreme Court’s more recent rulings. 

The four Justices who concluded that the Sixth Amendment does not require unanimous verdicts did so because they believed that they should look to the function served by the jury, rather than its history, to determine the meaning of the Sixth Amendment.  This is wrong.  As the Supreme Court has repeatedly recognized, it is appropriate to look to the common law as it existed at the Framing to determine how the Sixth Amendment’s right to a jury trial should apply, and the history makes clear that the Framers believed that an individual should not be convicted absent the unanimous agreement of his peers that he was guilty.  (Incidentally, the plurality in Apodaca was also wrong to conclude that unanimity is unimportant to the proper functioning of the jury.) 

The Supreme Court has also repeatedly recognized that the protections of the Bill of Rights should apply to the states in the same manner as they apply to the federal government.  Indeed, just a few years ago, in McDonald v. Chicago, the Court specifically identified Apodaca as an exception to that general rule, but made clear that Apodaca was “the result of an unusual division among the Justices, not an endorsement of [a] two-track approach to incorporation.”

In Jackson v. Louisiana, the Supreme Court now has an opportunity to revisit Apodaca and make the law in this area consistent with the rest of its Sixth and Fourteenth Amendment jurisprudence.  Ortiz Jackson was sentenced to life in prison at hard labor even though two of the jurors who heard his case concluded that he was not guilty; the Louisiana appellate court rejected his challenge to the non-unanimous verdict, essentially because the Louisiana Supreme Court had previously concluded that its hands were tied by Apodaca.  CAC, along with our co-counsel, Ben Cohen of The Promise of Justice Initiative, represents Mr. Jackson on his certiorari petition asking the Court to hear his case.    

The U.S. Supreme Court should agree to hear Mr. Jackson’s case.  Last time the Court considered this issue, it had trouble counting to five.  This time, in light of subsequent precedent, it should have no trouble counting to nine in favor of getting rid of the rule without a rationale that has allowed individuals to be convicted based on non-unanimous jury verdicts for the last forty years.