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July 8, 2010

"McDonald Signals The End Of Oregon’s Non-Unanimous Jury Rule"

The title of this post is the headline from this entry by Steve Sady at the Ninth Circuit Blog.  This post thoroughly and effectively walks through why and how the full incorporation holding in the McDonald Second Amendment case could and should eventually bring the demise of a less rigorous approach to the Sixth Amendment jury trial right in the states.  Here is how Sady's post starts:

The Supreme Court’s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule.  Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996.  Now, McDonald gives us a new road map for state and federal court litigation.

July 8, 2010 at 12:35 PM | Permalink


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I don't think any AEDPA case is going to make that change. The bottom line is that states get to rely on the specific Supreme Court holding (actually, for purposes of federal Con Law, they are required to follow the holding--"only this Court may overrule its precedents").

It will have to be on direct appeal, and SCOTUS will have to want to change it. I don't think it should.

Posted by: federalist | Jul 8, 2010 7:57:47 PM

"I don't think it should."

Granted you feel that way, but it would be inconsistent ... I don't see the constitutional logic between allowing state discretion here, particularly given the outlier nature of the states that do, and not allowing it in respect to guns, where the 2A in part was concerned restrictions of state discretion in the first place. At least, there seems to be as much or more reason to not have a "one size fits all rule" in the case with guns.

If you want such a rule, I don't see why it should not exist for criminal trials.

Posted by: Joe | Jul 12, 2010 9:02:44 AM

Would this effect non-unanimous jury sentencing in capital cases? Such as in Florida and Delaware?

Posted by: MikeinCT | Jul 12, 2010 5:21:22 PM

Joe, the problem with your argument is that selective incorporation cannot make Miranda, a judge made, prophylactic rule, applicable to the states, while the Second Amendment is left out. The requirement of unanimity is precedent, and it's settled. Selective incorporation was always a bit dodgy anyway, but it's settled, but so is Oregon's ability to have non-unanimous verdicts. Let them both stand. The law can deal with illogic every once in a while.

Posted by: federalist | Jul 12, 2010 10:34:59 PM

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