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Workers cover the US Supreme Court building in Washington, in this September 2012 file photo, with a protective scrim, as work continues on the facade.

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.

The US Supreme Court declined on Tuesday to take up a case examining whether the Sixth Amendment right to a jury trial requires that juries in criminal cases reach their verdicts unanimously.

Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote.

All other states and the federal government require that jurors reach a verdict unanimously.

Lawyers urging the high court to take up their case alleged that the jury process in Louisiana is a vestige of a Jim Crow-era policy that sought to undermine African-American participation in the criminal-justice system.

The petitioning lawyers also charged that the system undercuts the reliability of jury verdicts. They note that Louisiana’s Jefferson Parish, where their case was tried, has the fourth highest rate of wrongful convictions in the country. Neighboring Orleans Parish has the highest rate.

The root cause of these failures is Louisiana’s embrace of non-unanimous verdicts – “a practice that stultifies the time-honored method of ensuring careful review of the prosecution’s case in the jury room,” Stanford law professor Jeffrey Fisher wrote in his brief urging the court to confront the issue.

Officials in Louisiana deny that their non-unanimous jury system perpetuates racist policies or shoddy justice.

“Petitioner asks this court to reverse a matter settled by this Court forty years ago and a settled matter of state law for over 100 years,” assistant district attorney for Jefferson Parish, Terry Boudreaux, wrote in his brief to the court.

The issue arose in the case of Corey Miller, a New Orleans rapper, who was convicted of second-degree murder in the 2002 shooting death of 16-year-old Steve Thomas at a nightclub. The crime scene was crowded and confused, with conflicting testimony about who the shooter was or might have been. Prosecutors charged Mr. Miller, put him on trial for second-degree murder, and the jury voted 10 to 2 to convict.

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

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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