Washington Courts: Judicial News Report Detail

Jury verdicts by majority rule

February 24, 1997

Should Washington courts follow Oregon's and Louisiana's lead, and allow less-than unanimous jury verdicts?

Last year, California legislators wrestled with this question, then rejected a bill that would have amended their state constitution to allow ten-to-two jury verdicts.

Last week, Washington prosecutors and defense attorneys argued the same topic, when the House Law & Justice Committee convened to hear public testimony on HB 1295. If passed by both houses and signed by the Governor, state courts would be required to accept ten or more votes for conviction or acquittal in most criminal cases.


The proposal

According to the bill's language, "the votes of ten or more jurors are sufficient to convict or acquit." Oregon courts have used a similar verdict system since 1932. Challenged on appeal in 1972, it was upheld by the U.S. Supreme Court, according to Brad Andersen, Skamania County prosecutor.

Exceptions have been written into the bill, including a clause which says imposition of the death penalty, or conviction or acquittal of charges of aggravated, first-degree murder, must be determined by a unanimous vote of a 12-member jury.

Prosecutors--major proponents of the bill--say the change is necessary because of increasing costs of retrying mistrial cases. Holdout, "stealth jurors"--those with personal agendas not revealed during voir dire--cost the state millions of dollars each year, prosecutors say. Pierce County Prosecutors John Ladenburg, Jerry Costello and John Neeb joined Skamania County's Brad Andersen in testifying on behalf of the Washington Association of Prosecuting Attorneys.

According to Ladenburg, several cases in his jurisdiction have resulted in mistrials or eleven-to-one decisions. "These are not examples of (jurors) who are holding out because the state hasn't met their burden of proof. These are people who are holding out because they come with a personal agenda that they do not disclose in voir dire."

In one case, Ladenburg said, a mistrial was declared after the jury foreperson told prosecutors a holdout juror was waiting for a message from God to tell her what to do. "She never got that message, so she wouldn't vote to convict, whereas the other eleven were overwhelmingly convinced," Ladenburg said.

In a second, eleven-to-one case involving a first-degree, domestic violence murder, "The one male holdout did not disclose a history of domestic violence in voir dire, and in deliberations, explained to the jury that a batterer has an increasing cycle of violence as these things go on, such that the batterer loses control of himself or herself and by the time [abusers] reach the point that they kill, they are not capable of pre-meditation," explained Ladenburg.


County costs

Andersen testified on the cost implications of retrying cases in small counties.

"(I was asked to speak), I think, for two reasons. One is that I'm from Skamania County with a population of 9,000, and you can imagine the cost of having to re-try people is quite expensive. Last year we only had nine trials, and two of those ended up in hung juries. Just setting aside the cost of defense attorneys--the fact that civil trials can't go to trial, witness fees, the impact on victims, judges and prosecutor costs--the cost of juries in our county runs between $1,200 to $2,000 on any case."


Objections

A defense attorney, Peter K. Mair, representing the Washington Association of Criminal Defense Lawyers, appeared offended by the bill and its intent. "I don't know what the statistical base is that is driving this Legislature to consider changing the Constitution on this issue. I have yet to hear anything other than random anecdotes being put forth!" he declared.

"In my experience, less than ten percent...of (criminal) cases go to trial...The rest are disposed of by pleas of guilty. Of those, five to eight percent are going to trial, how many [end in a hung jury]?" he asked.
"Only those trials where there are contests of either charges, or there is evidence of innocence, end up in trial in the first place. So, it isn't surprising that some of those are going to result in either acquittals or hung juries. In my experience, hung juries have gone six to six in favor of acquittal as many times as they have ever gone the other way--and there are precious few of them," he said.

Using California statistics to support his view, Mair said "Less than one percent of the cases out of Los Angeles were found to be...hung...at any division, and less than half of that one percent resulted in ten-to-two or eleven-to-one splits.

"It's not like a civil matter--this isn't a business deal, this is the state or the federal government with all its power and all its majesty and its resources. Prosecutors certainly have the resources to run names through their computers to find criminal backgrounds of potential jurors--and they don't need 100 million more dollars to do it," Mair said.


Efficiency v. liberties

"I'll guarantee you there are a number of efficiencies that you can build into a criminal justice system that make people get convicted quicker and easier and at less cost--and if that's what we're all about, God help us all!" Mair concluded.


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