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Guilty By A 10-2 Vote: Efficient Or Unconstitutional?

Publication Date: 
July 07, 2009
The New York Times
Adam Liptak

Adam Liptak filed this story about a pending Supreme Court Litigation Clinic case Bowen v. Oregon, which presents the question whether the Constitution allows states to secure criminal convictions through nonunanimous jury verdicts:

“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 convince 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 concededly ignored 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...

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