I. The Setup
The villain of the episode is, unsurprisingly, an ogre. Nick’s partner Hank helped put him in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank. In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre. Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.
Interestingly, Oregon—where the show takes place—is the only state in the country for which that isn’t necessarily true. The Oregon Constitution provides that “in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise.” Ore. Const. art. I § 11. Oregon has since replaced first degree murder with aggravated murder, but the unanimity requirement applies to aggravated murder. See, e.g., State v. Sparks, 336 Or. 298 (2004) (en banc). We’ll come back to aggravated murder in a moment; first a discussion of jury verdicts and the Constitution.
II. Unanimity and the Constitution
Federal statutory law requires a unanimous verdict in federal cases (Fed. R. Crim. Pro. 31). However, this requirement is not necessarily rooted in the Constitution, and the states can permit convictions on less than unanimous verdicts. Apodaca v. Oregon, 406 U.S. 404 (1972). There was not a clear majority in Apodaca, so depending on which Justice you want to believe, the reason for this is either because the Sixth Amendment simply doesn’t require it or because that part of the Sixth Amendment isn’t incorporated by the 14th Amendment.
So just how much less than unanimous is okay? The Supreme Court hasn’t drawn an exact line, but the Apodaca case upheld 11-1 and 10-2 convictions, though a later case held that 5-1 was impermissible. Burch v. Louisiana, 441 U.S. 130 (1979). Justice Blackmun, concurring in Apodaca, said that he’d be okay with 9-3 but not as far as 7-5.
So that’s the constitutional law aspect. Now let’s turn to the facts of the case.
III. Aggravated Murder and Lesser Included Offenses
The show isn’t specific, but the ogre was probably charged with aggravated murder. From the definition of aggravated murder in ORS § 163.095:
“aggravated murder” means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:
(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.
In this case the ogre tortured his victim for two days, which would surely count. So a guilty verdict would have to be unanimous, right? Not necessarily, via the magic of lesser included offenses. Basically, the concept of a lesser included offense recognizes that many crimes consist of “committing crime X, plus some other stuff.” Thus, if someone commits the more serious crime, they’ve necessarily committed the lesser included offense of crime X. A classic common law example is that robbery is larceny plus assault (i.e. stealing something by force or the threat of force). So if someone commits a robbery, they’ve necessarily also committed both a larceny and an assault.
This has a few different practical effects. For one, a defendant can’t be convicted of both an offense and a lesser included offense for the same criminal act. So for example someone who forcibly steals a purse can’t be convicted of both robbery and larceny, since the larceny was part of the robbery. Of course, if they forcibly steal a purse and then non-forcibly shoplift some jewelry, then that’s two separate acts and they could be convicted of both a robbery and a larceny.
Another practical effect of this doctrine is that a defendant can, however, be convicted of any lesser included offense of the crime charged. Keeble v. United States, 412 U.S. 205 (1973). In fact, in a capital murder case, the Constitution requires the jury to be given instructions for lesser included offenses like manslaughter. Beck v. Alabama, 447 U.S. 625 (1980).
So, in the ogre’s case, the jury would have been instructed that they could find him guilty of aggravated murder, which requires a unanimous verdict, or they could find him guilty of a lesser included offense, which would require only 10 guilty votes, or they could acquit him. So if one or two jurors believed the faked alibi tape, but the other 10 or 11 still thought the ogre was guilty of aggravated murder, the jury could still find him guilty of regular murder or manslaughter, the one or two votes to acquit notwithstanding.
In just about any other jurisdiction, the jurors who believe the alibi would vote to acquit and the result would be a hung jury. Of course, if three or more jurors believed the alibi then all bets are off, even in Oregon.
“Game Ogre” wasn’t the strongest Grimm episode, but more recent ones have been better. We’ll definitely cover those in future posts, but we couldn’t resist the opportunity to make a post out of what is ordinarily a piece of legal trivia (although maybe it’s not so trivial to criminal defendants in Oregon!).