Herrera v Oregon

-Submitted by David Drumm (Nal), Guest Blogger.

Herrera v Oregon is a pending case before the Supreme Court, where Alonso Herrera, an Oregon man, was convicted by 10-2 jury vote of unauthorized use of a vehicle. At issue is whether the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment, requires a unanimous jury verdict to convict a person of a crime. Also at issue is whether the Bill of Rights, as incorporated against the states by the Fourteenth Amendment, should apply equally to the states as to the federal government, jot-for-jot incorporation. It is long overdue that these issues be resolved.

Sir William Blackstone, in Commentaries on the laws of England, wrote:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.

Justice Story, in Commentaries on the Constitution of the United States, wrote “unanimity in the verdict of the jury is indispensable.”

In Apodaca v Oregon and Johnson v Louisiana, heard in 1972, the Court upheld state laws that allow 10-2 verdicts in Oregon and 9-3 verdicts in Louisiana, even though the Justices stated their beliefs that the Sixth Amendment required unanimity. In Burch v Louisiana, the Court found that Louisiana’s law that allowed for 5-1 convictions by a six-person jury violated the Sixth Amendment, incorporated by the Fourteenth Amendment.

In Malloy v Hogan (1964), Justice Brennan wrote the opinion of the Court stating:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a “watered-down, subjective version of the individual guarantees of the Bill of Rights,” Ohio ex rel. Eaton v. Price (dissenting opinion).

If the Court finds non-unanimous verdicts unconstitutional, there’s going to be a lot of retrials in Oregon. That’s what they get for pussy-footing around this issue until now.

H/T: The Volokh Conspiracy, Exploring Constitutional Law, Malloy v Hogan, petition for cert (pdf).