“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”

— 6th Amendment, U.S. Constitution

“By (1791), unanimous verdicts had been required for about 400 years.”

— Justice Neil Gorsuch, Ramos v. Louisiana

On the seventh of this month, 11 other actors and I were supposed to stage a performance of the Reginald Rose classic, “12 Angry Men.” The plot surrounds a young man on trial for a murder. He faces the death penalty and seemingly overwhelming evidence of his guilt. As the jurors retire to a hot, humid deliberation room, they immediately begin to discuss how obviously guilty the boy is.

Hopeful to get out of the building early, they decide to begin their deliberations with a vote, assuming that they will all cast their ballot in favor of his conviction. To their surprise, one juror, played by Henry Fonda in the classic 1957 movie version, votes not guilty, setting off a three act see-saw drama in which the jurors come to realize that the state’s case was actually riddled with holes, and the boy’s guilt is very much in doubt.

Until Monday of this week, that first scene would have played out very, very differently in two states — Louisiana and Oregon. That’s because those states had, since the late 19th century, required only a 10-2 vote to convict a defendant, even in the most serious of cases. Had Rose’s play been set in Portland or Baton Rouge, the original 11-1 vote would have been sufficient, and the play would have been over in about three minutes.

Now, if you’ve lived your whole life in any state other than Oregon and Louisiana, you’re probably thinking, ‘Wait a minute! Don’t jury verdicts have to be unanimous? Isn’t that the law?’ And indeed, in 48 states, the District of Columbia, and the federal court system, it is. But the U.S. Supreme Court had never held that the Constitution required it.

The High Court had one chance to do so in 1972. In that instance, four Justices voted to require unanimity, four ruled that the plain language of the 6th Amendment doesn’t require it, and one, Justice Powell, kind of “punted” on the issue by finding that the 6th Amendment required unanimity for federal cases, but hadn’t been applied to states by the 14th Amendment.

This time around, a most unique collection of Justices came together to find that unanimity in criminal jury verdicts is required. Justice Gorsuch, who has consistently been a strong vote against the power of states in criminal cases, wrote the Court’s opinion, and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Thomas wrote separately but also required unanimity. Justice Alito dissented, and was joined by Chief Justice Roberts and Justice Kagan.

Gorsuch, an originalist, began his opinion by looking at what James Madison would have understood the words of the 6th Amendment to mean when he wrote them in 1791. He pointed out that by that time, legal scholars had assumed that a right to a jury trial meant a right to a unanimous verdict for 400 years, and surely Madison and his compatriots would have understood that, too.

He also pointed out that Louisiana’s adoption of a 10-2 requirement was specifically and explicitly adopted to nullify the votes of African-American jurors at a time when it was clear voting rights and jury service rights could be denied to them no longer. Oregon’s law, he noted, arose in the 1930s following a surge in support for the Klu Klux Klan in that state.

As a lawyer, I periodically read Supreme Court decisions with the understanding that they will immediately enter the following year’s law school textbooks and remain in those textbooks for generations to come. This case will no doubt be a staple of criminal law classes for years.

We weren’t able to perform Rose’s play because of the Covid-19 shutdown, but I’m extremely excited to let you know here that the Arena Fair Theater company will be staging a “Socially Distant Theater” radio-play version, via Facebook Live, at 7 p.m. Saturday, May 2. Each of the actors, including myself, will be in their homes, and the audio of the reading will be streamed through the Arena Fair Facebook page. If you’ve not seen the play before, this Court decision makes it a perfect time to enjoy it now.