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The Nation

February 17, 2011

High court asked to end non-unanimous convictions

WASHINGTON — Almost anywhere in the United States, two holdouts among 12 jurors would prevent a conviction. Unfortunately for Troy Barbour, his trial for attempted murder took place in Louisiana, where he got 48 years in prison after a jury convicted him on a 10-2 vote.

Now Barbour is asking the Supreme Court to end the practice — used only in Louisiana and Oregon — that allows defendants to be convicted of some crimes despite disagreement among jurors.

The justices meet privately on Friday after a more than three-week break. Barbour's case is among hundreds they are expected to decide then whether to hear or stay out of. The next list of cases the court has agreed to hear is expected Tuesday.

Nearly 40 years ago, the Supreme Court ruled that nothing in the Constitution bars states from allowing some convictions by non-unanimous verdicts. But even in these two states, first-degree murder, which could bring the death penalty, requires a unanimous verdict.

The court has held that the Sixth Amendment requires unanimous verdicts in federal criminal cases.

But in a 1972 case that turned on the vote of Justice Lewis Powell, the court said states were not compelled to follow suit and require unanimous juries in all criminal cases.

Jeffrey Fisher, Barbour's Supreme Court lawyer, said the court's recent decision to apply Second Amendment gun rights to state and federal law undermines the rationale for Powell's approach.

In June, the court ruled, in a challenge to gun control laws in the Chicago area, that protections in the Bill of Rights generally should apply identically to the states and the federal government.

A series of cases dealing with judges' discretion in meting out prison time also supports the argument that state and federal trials should follow the same rules, Fisher said.

In opposition, Louisiana argued that the court should not overrule the 1972 decision, which has guided state law.

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