The U.S. Supreme Court's 1857 proslavery Dred Scott decision, universally recognized as its most calamitous ever, was nullified by the 14th Amendment, which also required state laws to embrace the principles set out in the Bill of Rights.

It left a lot of questions hanging, however, and the court's 1972 Apodoca decision, a prime contender for the title of its goofiest ever, muddied the waters still further. There were hopes in Louisiana that the court in its upcoming session would renew its tussle with the Fourteenth Amendment, but the case in question did not make the cut.

In Apodoca, the court, by a majority of one, rehearsed common law history to conclude that the Sixth Amendment's guarantee of a speedy and public trial by an impartial jury implies that a unanimous verdict is required for conviction in federal trials. But the court also ruled, by a majority of one, that although the 14th Amendment requires the states to incorporate the provisions of the Sixth, they were not required to toe the federal line down to the last detail.

Louisiana and Oregon were thus deemed within their constitutional rights to accept majority verdicts, although unanimity is required in state courts everywhere else.

For this juridical dissonance, we are indebted to Lewis Powell, who provided the deciding vote each time.

In Louisiana, 10 out of 12 votes is enough to win conviction in all but capital cases, which clearly makes a mockery of traditional standards of justice. If two jurors think a defendant innocent, guilt has not been proven beyond a reasonable doubt, but life in prison is in the cards. Of course, the constitution makes no mention of reasonable doubt and does not spell out a unanimity requirement, leaving the way clear for Powell to embrace his double standard.

Dale Lambert is doing life after being found guilty in 2015 of second-degree murder in New Orleans largely on the strength of eyewitness testimony that failed to convince two of the jurors. Lambert wanted the Supreme Court to reconsider Apodoca, which it had already refused to do several times, although the Louisiana and Oregon laws render miscarriages of justice much more likely.


Lambert's attorney, Ben Cohen, of the Promise of Justice Initiative, noted in his petition that further challenges are inevitable and “uncertainty over this court's constitutional jurisprudence will reign” until the court takes up one of them. Let's get it over with now was Cohen's advice, but it fell on deaf ears.

The Louisiana law originated at a constitutional convention in 1898 with the avowed purpose of ensuring the supremacy of the “Anglo Saxon race.” The majority verdict requirement was designed to ensure that a jury would serve that purpose even if a couple of black men were on it.

The Oregon law was inspired by a wave of anti-Semitism after a Jewish defendant was spared a murder conviction by a hung jury.

Today, the laws continue to advance the discriminatory purposes for which they were conceived and deprive minorities of a voice.

They undermine, for instance, the rule that bars prosecutors from striking potential jurors just because of their skin color. With majority verdicts, prosecutors can obey that rule by impanelling a couple of black candidates safe in the knowledge that their votes may make no difference.

Prosecutors cannot be gainsaid when they aver that majority verdicts increase efficiency. They make for shorter trials, fewer retrials and therefore lower costs. Indeed, Louisiana courts are so efficient at shunting defendants off to jail that we lead the nation in wrongful convictions and incarceration rates. We are not short of efficiency around here; it's justice where we are lacking.

Various studies have confirmed what common sense says about majority verdicts. They cause deliberations to be less thorough, and allow jurors to get home in time for dinner rather than give a case the full analysis that justice calls for.

Unanimous verdicts have for centuries provided a safeguard against the conviction of innocents. That they continue to do so in most every criminal court in the land confirms that they are a bulwark against injustice.

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