SCOTUS Denies Cert on Post-McDonald Unanimous Jury Incorporation Case from Louisiana

February 20th, 2013

Oregon and Louisiana are the only two states in the country where a criminal conviction can be obtained from a non-unanimous jury. In Herrera v. Oregon, the Supreme Court had already denied cert on a challenge to that practice in Oregon, post McDonald v. Chicago.

Now, the Court has denied the petition from Louisiana.

Miller v. Louisana presented the question of “Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict?” The Court denied the petition yesterday.

For now, the anomalous Apodaca will stand. As Miller’s petition notes:

Concurring in the judgment in Apodaca, Justice Powell reasoned that even though the Sixth Amendment requires unanimity in federal cases, the Fourteenth Amendment does not demand the same in state cases. But this reasoning cannot be squared with this Court’s recent holding in McDonald that “[t]he relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle”: “incorporated Bill of Rights protections are to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” 130 S. Ct. at 3035, 3048 (internal quotation and citation omitted). . . . This Court should exercise that prerogative now. Stare decisis has limited force in this case and the constitutional right at stake is enormously important.

McDonald’s application to the incorporation of other provisions of the Bill of Rights seems to be at an end.

H/T Christian Science Monitor