12 good men and true?

[Peikko 1,575]

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Interesting article.

“Twelve Angry Men” might have been a much shorter movie had it been set in Oregon. Instead of letting Juror No. 8, the lone holdout played by Henry Fonda, methodically persuade his fellow jurors that there was good reason to doubt the defendant’s guilt, an Oregon jury might have just voted and been done with it.

That’s because Oregon is one of only two states that does not require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows convictions by a vote of 10-to-2.

In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity.

But the decisions, one each from Oregon and Louisiana, were badly fractured and internally inconsistent. They discounted the historical record and made assumptions about jury behavior that have been called into question by more recent research.

Scott D. Bowen, an Oregon man sentenced to 17 years in prison for sex offenses, is now asking the Supreme Court to have another look at the issue. The case against Mr. Bowen was based on statements from his 15-year-old daughter, who had run away from home. Mr. Bowen said his daughter had made up the charges to gain her independence.

Prosecutors were able to persuade only 10 jurors of Mr. Bowen’s guilt. In Oregon, that was enough.

Mr. Bowen may find allies in two of the current court’s more conservative members, Justices Antonin Scalia and Clarence Thomas, who have often joined with more liberal justices to enforce the original meaning of constitutional provisions protecting the rights of criminal defendants.

The men who drafted the Sixth Amendment understood criminal convictions to require, as William Blackstone put it in 1769, “the unanimous suffrage of twelve” of the defendant’s “equals and neighbors.” The Supreme Court has invoked that language in recent decisions concerning the importance of the jury’s role in determining facts supporting convictions.

In its brief urging the Supreme Court not to hear Mr. Bowen’s case, Oregon acknowledged that “the common law at the time of the founding required a jury verdict to be unanimous.”

“But it does not follow from that historical fact that a unanimous jury became a constitutional guarantee,” Oregon’s brief said. “Wiser or not, unanimous juries are not a Sixth Amendment mandate.”

Joshua Marquis, the district attorney in Clatsop County, Ore., said requiring agreement among just 10 jurors is efficient.

“Pretty much the only difference is that we have fewer hung juries,” he said.

Mr. Marquis added that 10 votes are required for conviction or acquittal and so the requirement favors neither the prosecution nor the defense. “Those two people who hold out,” he said, “are as often holdouts for the prosecution.”

But defense lawyers say the rule was designed to make obtaining convictions easier. Indeed, pamphlets distributed to Oregon voters before they authorized the 1934 amendment to the state constitution allowing non-unanimous juries just about said as much.

Mr. Bowen is supported by the American Bar Association, experts in jury behavior, legal historians, the criminal defense bar and civil rights lawyers.

According to the Oregon Criminal Defense Lawyers Association, most felony convictions in the state are the products of non-unanimous juries. Oddly, misdemeanor convictions still require a unanimous vote, though from a six-member jury. That means, the association said in a brief supporting Mr. Bowen, that prosecutors face a lighter burden in more serious cases.

Oregon does require a unanimous vote in first-degree murder cases, and Louisiana requires it in capital cases.

A unanimity rule would seem to reinforce the requirement that prosecutors prove their cases beyond a reasonable doubt. Two jurors out of 12, if you do the math, represent about 16 percent of the panel. That’s a fair amount of doubt.

Mr. Marquis, the Oregon prosecutor, said the state’s rule helps weed out “rogue jurors.” But Shari S. Diamond, an authority on jury behavior at Northwestern University’s law school, said those concerns are overblown. It is very hard for a single person to hold out, she said, but very important that jurors deliberate until unanimity is reached.

“The argument that people who are in the minority are somehow deviant, not worth respecting or making crazy arguments,” she said, “just doesn’t hold up.”

A supporting brief filed by Professor Diamond and 16 other scholars said “there was little systematic evidence one way or the other” about jury behavior when the Supreme Court last addressed the question. “Empirical studies conducted since 1972,” the brief went on, “show that jury deliberations are in fact less vigorous when unanimity is not required.”

Justice Potter Stewart, dissenting in the 1972 decision from Louisiana, identified a further problem with non-unanimous juries. The jurors in the majority, he said, “can simply ignore the views of their fellow panel members of a different race or class.”

Indeed, that may have been part of the reason for the practice in the first place.

“Recent historical scholarship indicates,” Charles Ogletree, a law professor at Harvard, wrote in a supporting brief in Mr. Bowen’s case, “that one of the original purposes of the non-unanimous jury was to functionally silence the views of racial and ethnic minorities and women.”

The defendant in “Twelve Angry Men” may have been guilty. What the jury system aims to do, Juror No. 8 explained, is calibrate doubt.

“We’re just gambling on probabilities,” he said. “We may be wrong. We may be trying to return a guilty man to the community. No one can really know.”

The question is where to set the bar. Should the court agree to hear Mr. Bowen’s case, it will decide whether proving a case to the satisfaction of 84 percent of the jurors is good enough.