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Aug. 11 2004 5:22 PM

Eleven Angry Men

Who says juries have to be unanimous?

Suspected serial killer Derrick Todd Lee was found guilty yesterday of second-degree murder. Eleven members of the Port Allen, La., jury voted for conviction, while a lone dissenter voted to acquit. Aren't juries in criminal trials supposed to unanimous?

Not in Louisiana or Oregon, where most felony cases require only a supermajority of 10 jurors to convict or acquit. The exceptions in Louisiana are death-penalty cases, as well as trials that use six jurors rather than 12. (The second-degree murder charge that Lee faced carries a mandatory sentence of life in prison.) In Oregon, all murder cases, regardless of the prescribed punishment, still require unanimity.

The tradition of unanimous juries dates back to 14th-century English common law and became the American standard during the colonial period. Louisiana was the first to buck the system, when it authorized supermajority verdicts in felony trials in 1928. Oregon followed suit six years later with a section in its state constitution allowing for verdicts when five-sixths of a jury in a criminal trial agrees. Legal historians believe both changes were made in response to concerns over a rising number of hung juries, which often favor the defense.

Both laws were challenged in 1972, when the United States Supreme Court decided Johnson v. Louisiana and Apodaca v. Oregon on the same day. The court ruled that non-unanimous verdicts did not violate the 14th Amendment's due process clause, as the plaintiff in Johnson argued. A majority of the justices also decided that the Sixth Amendment, which guarantees the right to trial by a jury, does not also guarantee the right to a unanimous verdict, as the plaintiffs in Apodaca had contended.

Though these two decisions are widely interpreted as endorsing the constitutionality of non-unanimous verdicts in criminal trials, no other state has followed the example set by Louisiana and Oregon. (One technical exception is Oklahoma, although non-unanimous verdicts are allowed there only in misdemeanor trials in which the punishment is six months in jail or less.) There have been several failed legislative attempts to extend the practice, often after high-profile cases that ended with hung juries (as between five percent and 12 percent of all criminal trials do). And in 1999 in Oregon, voters were asked whether they'd like to allow 11-to-1 verdicts in noncapital murder cases. The Oregonians said no.

Brendan I. Koerner is a contributing editor at Wired and a columnist for Gizmodo. His first book, Now the Hell Will Start, is out now.

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