Wednesday, May 27, 2009

Dissenters Beware

In my latest FindLaw column I discuss the case of Bowen v. Oregon, which is before the U.S. Supreme Court in a petition for certiorari. The issue is whether the Sixth Amendment right to a jury trial includes a requirement -- for serious criminal charges -- that conviction must be by a unanimous vote. The Court previously upheld the Oregon approach (which, like Louisiana but unlike the 48 other states, allows "split-verdicts") in Apodaca v. Oregon, but parties suggest that this 1972 decision merits re-examination, in the light of what we have learned about jury deliberation in the interim. My column discusses the way in which a unanimity requirement would and would not alter the manner in which groups of jurors (and, in fact, groups of people more generally) deliberate and reach decisions.

In this post, I want to focus on a different aspect of the case: the breakdown of Justices in Apodaca, which upheld the validity of non-unanimous verdicts under the Sixth and Fourteenth Amendments. The petition for certiorari argues (among other things) that the particular split between the Justices renders the ultimate outcome of the earlier case less weighty as precedent. To simplify a bit, there were two separate questions presented to the earlier Supreme Court: 1) whether the Sixth Amendment right to a jury trial requires juror unanimity, and 2) whether, if the answer to the first question is yes, the Fourteenth Amendment (which applies the Sixth Amendment to the states, including Oregon) requires juror unanimity. As sometimes happens when two issues come before the Court, the Justices split with one another not only on the ultimate outcome but also on which issue ought to be resolved which way. Here, the petition for certiorari states, eight Justices either expressed or did not dispute the view that the Sixth Amendment jury trial right is the same, regardless of whether a defendant faces charges in federal court or state court. In other words, if the Sixth Amendment requires unanimity in federal prosecutions, then the Fourteenth Amendment (as it incorporates the Sixth Amendment) requires it in state prosecutions. On the question of whether the Sixth Amendment requires unanimity, moreover, five Justices concluded that it does. Therefore, on at least one reading, a majority of Justices (though not the same Justices) supported a Sixth Amendment unanimity requirement and full incorporation against the States of whatever the Sixth Amendment required.

Why, then, did the petitioner lose? Because Justice Powell was the fifth vote for a Sixth Amendment right to unanimity, and he rejected the Fourteenth Amendment incorporation of that right. He therefore voted for the respondent, along with the four Justices who believed in (or did not dispute) full incorporation but rejected the right to unanimity. Because five Justices concluded that the petitioner should lose, he did.

This outcome made sense, because different people can have different reasons for reaching a conclusion: you might decide not to hire a person because you think he is incompetent, although you like him personally; your partner might decide not to hire the same person because she thinks he is obnoxious, even though she believes he is extremely competent and highly qualified. It is not controversial to say that neither you nor your partner want to hire the particular person, even though one could add up the votes and say that, on one reading, you are evenly split, because one person believes the candidate is highly competent, and one believes he is a likable person to have around. If further information later surfaces, however, it may be easier for you and your partner to reassess the earlier decision than it would have been if you had agreed that the candidate failed both criteria for hiring.

For example, if the candidate performed amazingly well at a later job and then reapplied, your partner might feel pressured to hire him, since you would both consider him competent, and you would even consider him likable.

The petition for certiorari emphasizes, in this vein, that cases that followed Apodaca have clarified that there is no deep divide between constitutional rights that apply against the federal government and constitutional rights that apply against the states. Though there are some rules that do not extend to the states (e.g., the right to be indicted by a grand jury), the modern approach has generally been to treat federal and state defendants as equally entitled to the protections of the Bill of Rights. Given these developments, Justice Powell -- were he alive and still serving on the Court -- would likely switch his bottom-line vote and find a Fourteenth Amendment right to unanimity.

Maybe. One of the interesting things about the unanimity case is that it calls our attention to the fact that the same people reason differently, depending on group dynamics. That is, the premise of the petitioner in Bowen is that if a minority group member's vote matters to the outcome, the entire deliberative process of the group will be different and more robust. If this is true of jurors (and I argue in my column that it is, provided more than one dissenter), then it may well be true of Justices as well. Because Justice Powell knew that his Sixth Amendment conclusion (that unanimity is required) would not affect the outcome of the case, he might have been less inclined to question and probe this conclusion. Faced with a near-complete incorporation doctrine today, however, he might well have found himself reaching a different conclusion. I do not raise this possibility as an argument against the Court's granting certiorari; in fact, I believe the Court should take the case. Nonetheless, the same skepticism with which the petitioner (and his amici) view non-unanimous majority verdicts in Oregon and Louisiana counsels against making assumptions about how Justices would have voted if one of two issues were taken off the table. As I see it, the lesson we can take from social psychology research on group decision-making is this: when we deliberate as a group, we do not make decisions -- about individual issues or outcomes -- in a vacuum. It is therefore not easy to predict what a jury -- or a court -- would do under a very different set of circumstances.

Posted by Sherry Colb


Michael C. Dorf said...

The classic law review article on this subject is by Lew Kornhauser and Larry Sager, Unpacking the Court, 96 Yale L.J. 82 (1986), followed by a series of follow-ups. But the irony to which Sherry points here is, to my knowledge, unprecedented: A litigant invoking the group dynamics of an earlier decision ABOUT group dynamics as a basis for disregarding that earlier decision but in the process making a meta-argument that, applied to the substance of the underlying claim, undercuts it. (There's undoubtedly a way of making my point so that the irony is more apparent.)

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