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Unanimous juries for criminal convictions? Supreme Court declines case.

The Supreme Court declines to take up a case challenging the right of states to permit non-unanimous verdicts. Critics say verdicts reached by divided juries violate the Sixth Amendment.

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Miller was sentenced to life in prison without the possibility of parole.

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The US Supreme Court ruled in 1972 that the Constitution does not bar states from adopting less-than-unanimous jury verdicts. The nine justices split 4 to 4 on the issue. Justice Lewis Powell broke the tie, siding with the justices supporting non-unanimous juries at the state level.

At that time only Louisiana and Oregon embraced the idea, and they remain today – 40 years later – the only two states with such a system.

Mr. Fisher urged the justices to reconsider the 1972 decision and reverse it.

Mr. Boudreaux, the assistant district attorney, said in his own brief that the Supreme Court has been asked repeatedly to take up the same issue and has repeatedly refused. He said the court declined twice in 2008, once in 2009, and twice in 2011.

“The Sixth Amendment provides for a right to a trial by jury. The Tenth Amendment reserved to the States the authority to define that right. Louisiana has done so in a way which has been recognized by this Court as respecting due process and equal protection. This Court’s precedents refute petitioner’s claim. It should be denied,” Boudreaux wrote.

Miller’s lawyers sought to link Louisiana’s non-unanimous jury law to the state’s past history of racist policies by citing comments made at a state constitutional convention in 1898. The convention was designed to “establish the supremacy of the white race,” Fisher wrote.

Prosecutors dispute that Louisiana’s non-unanimous jury law is aimed at suppressing the rights of blacks. They said the constitutional convention in 1898 was related to voting rights, not juries at criminal trials.

“The comments should not be taken out of context and forcibly grafted onto the issue herein,” Boudreaux wrote.

Fisher countered: “The state contends that this abhorrent purpose animated only the grandfather clause and literacy test that came out of the convention. But the State offers no reason why the nonunanimity rule does not share the same taint.”

“Public discourse of the [late 1800s] era viewed black votes in jury rooms with the same kind of derision as black votes at the ballot box,” Fisher wrote in his brief. He cited an 1873 letter to a newspaper complaining: “If a Negro be on trial for any crime, [a black juror] becomes at once his earnest champion, and a hung jury is the usual result.”

Fisher said the racial effects of the jury rule continue to be felt in Louisiana. Prosecutors in Jefferson Parish seek to remove African-Americans from a prospective jury panel more than three times the rate that whites are challenged, he said.

As a result, 80 percent of guilty verdicts in Jefferson Parish can be handed down with no African-American votes in favor of conviction, Fisher said.

The case was Miller v. Louisiana (12-162).

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