Finding inspiration from last year's Supreme Court ruling extending gun rights to the states, an Oregon man with the help of a well-known west coast lawyer has failed to get the high court to set aside his conviction for taking his buddy's car without permission.
The justices announced Monday they will not hear Alonso Herrera's appeal that his conviction for unauthorized use of a vehicle is unconstitutional because the jury that heard his case didn't reach a unanimous verdict.
Oregon and Louisiana are the only two states that allow juries to convict defendants even if they don't reach unanimity. Both states require only 10 out of 12 jurors to find the accused guilty. All other states follow the federal law mandating a unanimous jury for conviction.
Herrera's lawyer, UCLA law professor Eugene Volokh, says anything short of a unanimous verdict violates his client's Sixth Amendment right to an impartial jury. "Whatever flexibility the government may have in dispensing with historical features of the jury that are peripheral, accidental, or unimportant, such flexibility cannot extend to the essential requirement of unanimity," Volokh wrote to the court.
The legal issue question before the justices wasn't the unanimous jury requirement but rather if that federal right is also forced against the states. It's essentially the same matter the justices tackled last year ruling that the individualized Second Amendment right to keep and bear arms is so fundamental that it must also be applied to states.
Volokh argued the same logic must hold to jury verdicts. He calls it a "constitutional anomaly" that allows any state to convict people by a standard short of the federal constitutional requirement of unanimity.
If they took the case, the justices would have revisited its 1972 ruling that allowed states, in the interest of experimentation, to create jury conviction standards short of the federal standard.
Oregon's lawyers asked the high court to stay out of the case effectively upholding its 1972 decision. "The Sixth Amendment does not explicitly include the right to a unanimous jury verdict," Solicitor General Mary Williams wrote in her opposition brief. She notes that the Founders rejected an earlier version of the amendment that would have explicitly called for a unanimous decision.
Another similar case from Louisiana is also pending further action from the justices.
In that case, the American Bar Association submitted a brief on behalf of Troy Barbour, a convicted murderer. "For the last thirty-plus years, the ABA has continued to evaluate this standard and has consistently concluded that unanimity should be required in all-federal and state-criminal jury trials," wrote lawyer Stephen Zack.
It isn't immediately clear what impact Monday's decision will have on the fate of Barbour's appeal.