One more high-profile trial torpedoed by a holdout juror or two, Los Angeles County Dist. Atty. Gil Garcetti hints, and a "crisis in credibility" in the judicial system may prompt calls for an overhaul.
It may even cause Californians to look to Louisiana and Oregon, the only two states where those tried for any felony except murder can be convicted--or acquitted--even if two of 12 jurors disagree.
The unanimous jury system, evolved from English common law 600 years ago, is so enshrined in the American consciousness that few even know there are alternatives. Yet here in the ornate old Multnomah County Courthouse, non-unanimous juries have been the norm in felony cases since 1934.
Prosecutors and court administrators love the system, saying there are far fewer hung juries and more people in prison who deserve to be there. Most judges seem to like it too, saying it is a fair and efficient way of meting out justice without compromising defendants' rights.
But many defense lawyers hate it. And then there are people such as Timothy Alan Hinkhouse, 24. "It's not right; it's not fair," Hinkhouse said in a phone interview from the Oregon State Penitentiary in Salem. He was sentenced to 70 years for attempted murder, despite one juror who obstinately refused to convict him. "It keeps Oregon's largest business going, which is the prison system."
The U.S. Supreme Court has upheld the Oregon system. But is that system better than the rest of the nation's? Experts say there are far too many variables to compare the two.
Robert MacCoun, a UC Berkeley public policy professor and former RAND scholar, said that despite the conventional wisdom that they favor prosecutors, non-unanimous juries do not improve conviction rates. One landmark study in 1966 found that juries leaning toward acquittal deadlock more than those supporting conviction.
Non-unanimous juries do appear to significantly cut down on hung juries. When the Oregon law was challenged in 1971, states requiring unanimous verdicts had hung jury rates of 5.6% in felony trials, nearly double the 3.1% rate for states with non-unanimous jury verdicts, according to Oregon's then-Solicitor General Jacob Tanzer, who argued the case before the U.S. Supreme Court. (In contrast, Los Angeles County has a 13.4% hung jury rate in felony trials.)
Some studies also suggest that because jurors do not have to reach consensus, they do not deliberate as long, or as thoughtfully-- though Tanzer and other experts disagree.
"The beauty of our system is that it (keeps) the one crackpot, the one person that will never see things the way others do, from holding up the entire system of justice," Tanzer said in an interview in his office overlooking the Willamette River.
Tanzer won over the high court in a 5-4 decision by arguing that the non-unanimous verdict still protects citizens from vengeful and wrongful prosecution, establishes their guilt beyond a reasonable doubt and makes it easier for jurors to come to a decision. Many times, he said, jurors reach unanimity only after long and brutal deliberations, when they are pressured into conformity or simply want to return to their jobs and families.
But defense lawyers have fits, saying the ability of 10 jurors to overrule two jurors only makes it easier for their clients to be wrongfully convicted. University of Michigan Prof. Richard Lempert said: "Suppose they find more people innocent who are actually guilty? We don't know."
He's no legal scholar, but bag maker John Bishop agrees with some experts in saying it all comes down to common sense. "It should be unanimous," said Bishop, waiting in the Multnomah courthouse's wide marble hallways for a break in a friend's case. "If they can't convince two of those people, maybe something ain't right with the case."
Even in Oregon and Louisiana there must be a unanimous conviction or acquittal in a murder case. But juries in the past have often deadlocked on murder charges, only to reduce the charges to manslaughter and achieve an 11-1 conviction, said Tanzer, who is now a trial lawyer.
In other states, including California, prosecutors have to prevail unanimously. Each juror has the power to derail the entire prosecution.
USC Law School Prof. Erwin Chemerinsky, who is monitoring the O.J. Simpson case, said the potential for deadlock is enormous given the heated emotions, vaunted Simpson legal team and hard-to-understand scientific evidence.
"All you need is one person not willing to convict because of his (Simpson's) popularity and this case ends up with a hung jury," Chemerinsky said. "There is enormous tolerance for idiosyncratic behavior because we don't want to exclude the one angry man."
Although Garcetti refused to discuss the Simpson case, such fears are surely on his mind.
He broached the subject this year at a public meeting when he called for a comprehensive look at the entire jury system, shortly after hung juries in the Menendez brothers' murder trials. Garcetti later acknowledged that losses in several high-profile cases indicate the need for widespread reform, including making jury instructions easier for jurors to understand. Non-unanimous juries, he said, are "something that we may have to look at."
Garcetti said he is concerned that some jurors may intentionally "ignore the law or the evidence and vote because of personal or political agendas."
Ten years ago, then Los Angeles County Dist. Atty. Robert Philibosian tried to get non-unanimous juries approved by the state Legislature and failed.
Gerald Chaleff, past president of the Los Angeles County Bar Assn., said that opposition from trial lawyers to such a move would be formidable even today. He said he has tried several cases in which jurors were 11 to 1 one way and ended up unanimously going the other way.
"We are moving more and more to a system of 'arrest them and lock 'em up,' and eliminating the middle part, which is to convict them," Chaleff said. "But when we do that we begin to convict more innocent people. We are talking about people's lives and their liberty. It is dangerous."