Case preview: Justices will hear argument on whether unanimous jury ruling applies retroactively
on Dec 1, 2020 at 4:34 pm
In April, the Supreme Court ruled in Ramos v. Louisiana that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. On Wednesday in Edwards v. Vannoy, the justices will hear argument on whether inmates whose convictions became final before that decision can now take advantage of it. Although only two states, Louisiana and Oregon, have allowed non-unanimous jury verdicts in recent years, those states say that a ruling for the inmates could “seriously strain” their systems by reopening many years’ worth of convictions.
The Sixth Amendment to the Constitution guarantees the right to an “impartial jury.” When it and the other amendments in the Bill of Rights were originally enacted, they were interpreted as applying only to the federal government – not to the states. Since then, however, the Supreme Court has ruled that some, and eventually most, of the Bill of Rights also applies to the states – a doctrine known as “incorporation” – through the 14th Amendment to the Constitution, which bars states from depriving anyone of “life, liberty, or property, without due process of law.”
In 1972, in Apodaca v. Oregon, the Supreme Court ruled that although the Sixth Amendment secures a right to a unanimous jury, that right does not extend to defendants in state trials. The court was deeply fractured. Four justices would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four others would have ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The controlling vote came from Justice Lewis Powell, who wrote that the Sixth Amendment protects the right to a unanimous jury in federal criminal trials but not state trials.
Nearly 50 years later, in Ramos, the Supreme Court reversed course. The justices were again divided on both the result and the reasoning for their ruling. Writing for the majority, Justice Neil Gorsuch explained that when the Sixth Amendment was adopted there was a long history of a right to a unanimous jury verdict. Gorsuch downplayed concerns – voiced by Justice Samuel Alito in his dissent – about the burdens that the court’s decision could impose on Louisiana and Oregon, noting that both states had imposed the non-unanimous jury rule for racist reasons.
Thedrick Edwards, the petitioner in the case before the court on Wednesday, was indicted on charges that he had committed a series of crimes, including armed robbery, rape and kidnapping, in the Baton Rouge area in May 2006. The only Black juror voted to acquit Edwards, who is Black, on all counts, but because Louisiana allowed non-unanimous jury verdicts at the time, Edwards was convicted and sentenced to life in prison, without the possibility of parole.
Edwards’ convictions became final in 2011. When his efforts to seek post-conviction relief in the Louisiana state courts were unsuccessful, Edwards went to federal court, where he argued that Louisiana’s practice of allowing convictions by non-unanimous juries violated his rights under the Constitution. Both the district court and the U.S. Court of Appeals for the 5th Circuit denied relief, leading Edwards to seek Supreme Court review.
Edwards filed his petition for certiorari in August 2019, less than two months before the justices heard oral argument in Ramos. The justices granted Edwards’ petition in May 2020, shortly after they issued their ruling in Ramos.
The Supreme Court’s 1989 decision in Teague v. Lane sets out a framework to determine when criminal-procedure rules will apply retroactively to cases on federal collateral review. Under Teague, a “new” rule generally does not apply retroactively unless (as relevant here) it is a “watershed” rule of criminal procedure – that is, essential to ensuring that a conviction has been fairly obtained.
In his briefing, Edwards argues that he can win under either prong of Teague: Ramos applies retroactively because it did not establish a new rule, but even if it did, he can still prevail because Ramos created a watershed rule of criminal procedure.
Addressing the first question, Edwards contends that three principles that were well established long before the court’s decision in Ramos lead to the conclusion that the Sixth Amendment’s guarantee of the right to a jury trial also requires a unanimous verdict in both federal and state courts. First, he observes, by the time the Sixth Amendment was enacted, the right to trial by a unanimous jury was widely regarded as an “indispensable” right. Second, the Sixth Amendment right to a jury trial was also considered an integral part of the American criminal justice system, applied to the states through the 14th Amendment. And third, when a provision of the Bill of Rights is applied to the states, it applies in the same way that it does to the federal government. Taken together, Edwards writes, those three principles logically point to the rule outlined in Ramos; therefore, he concludes, Ramos did not establish a new rule.
Further evidence that Ramos did not create a new rule can be found, Edwards asserts, by looking at the impact – or lack thereof – of the court’s decision. The court’s ruling in Ramos left the law in virtually all of the country, Edwards observes. It “simply brought two outlier States in line with centuries of history, and the practice of the federal government and 48 other States.”
Nothing about Apodaca takes away from the conclusion that Ramos reaffirmed an old rule, Edwards continues. Apodaca, Edwards reasons, “was at odds with pre-existing authority and did not itself generate new, binding precedent.” Indeed, he points out, no other state began to use non-unanimous juries in the nearly half-century after Apodaca and before Ramos. And even Louisiana did not argue in Ramos that Apodaca was binding precedent, maintaining instead that there was simply no right under the Sixth Amendment to unanimity.
But if Ramos was a “new rule,” Edwards adds, it still applies retroactively because of its “profound contribution to fairness and accuracy in criminal proceedings in Louisiana and Oregon.” Having a unanimous jury is a key component of the right to a jury trial, he contends, and “as a legal and practical matter, jury unanimity is necessary to prevent an impermissibly large risk of inaccurate convictions.” The right to a unanimous jury is the rare right that is on par with Gideon v. Wainwright, the court’s 1963 decision establishing the right of poor criminal defendants to a lawyer, which the court in Teague specifically cited as the kind of rule that would apply retroactively.
Edwards downplayed the effect of a ruling in his favor on prior convictions, telling the justices that only a “small percentage” of convictions in Louisiana and Oregon can be attributed to non-unanimous jury verdicts. Defendants who pleaded guilty – who make up the overwhelming majority of convictions – could not challenge their convictions, nor could defendants who waived their right to a jury trial and opted to be tried by a judge. Even among the defendants who were convicted by non-unanimous juries, Edwards suggests, relatively few will likely be retried, either because other federal post-conviction laws will bar them from obtaining relief or because prosecutors and defendants will be able to reach a plea agreement. And in any event, Edwards concludes, any interest that the state might have otherwise had in the finality of its convictions is reduced by the racist reasons behind the non-unanimous jury laws.
The state’s arguments
Louisiana counters that Ramos undoubtedly announced a new rule – and does not apply retroactively – because it specifically overruled Apodaca. The state stresses that the same question was before the justices in both cases: whether conviction by a non-unanimous jury violates the Sixth Amendment’s right to a jury trial, incorporated against the states by the 14th Amendment. In Apodaca, the court ruled that it did not; in Ramos, it held that it did – which is, Louisiana argues, “the very definition of a new rule.” It doesn’t matter, Louisiana contends, that the majority in Apodaca did not agree on the reasoning behind the court’s conclusion, because a majority of the justices in Ramos did agree that the decision in Apodaca was binding precedent.
Even if Apodaca was not binding precedent, Louisiana continues, Ramos can be an old rule only if it would have been “apparent to all reasonable jurists” that the rule it announced was required by the precedent that existed at the time. But it was hardly clear that Apodaca was no longer good law, the state writes. To the contrary, during the 48-year-period between the court’s decisions in Apodaca and Ramos, the Supreme Court “often cited and acknowledged Apodaca’s holding without suggesting that it had somehow been abrogated.” Indeed, the Supreme Court repeatedly denied petitions asking it to weigh in on the constitutionality of the non-unanimous jury rule.
Ramos is therefore a new rule, the state maintains, and Edwards cannot meet the high bar required to show that it is a “watershed.” The Supreme Court has said that to overcome a state’s interest in the finality of its convictions, a “watershed” procedural rule must be “central to an accurate determination of innocence or guilt.” But there is no evidence, the state says, that non-unanimous verdicts “are disproportionately likely to put innocent people behind bars.” Rates of exoneration for Louisiana and Oregon are comparable to other states that require unanimous jury verdicts – and even lower than some of those states, such as Illinois. Moreover, Louisiana notes, only a fraction of those exonerations in Louisiana and Oregon even involved non-unanimous verdicts. In the 31 years since the Supreme Court’s decision in Teague, the state concludes, the justices have “declined every invitation to make a new procedural rule apply retroactively. This case should not be the first.”
Louisiana also rejects the argument that the origins of the non-unanimous jury law weigh in favor of applying Ramos retroactively. No matter what the origins of the policy, which was first adopted at the turn of the 20th century, may have been, the state posits, there is no suggestion that the decision to re-adopt the policy in 1974 was the product of racial animus. Other developed countries use non-unanimous verdicts, including England and Ireland.
And contrary to Edwards’ suggestion, the state contends, the impact of a ruling in his favor would be sweeping: Louisiana, Oregon and Puerto Rico (which also allows non-unanimous verdicts) might need to retry hundreds or even thousands of defendants. Putting aside the financial burdens that would result from having to retry the defendants, Louisiana continues, states would also face logistical problems, as witnesses become unavailable “and their memories fade.”
The federal government filed a “friend of the court” brief supporting Louisiana. It noted that Teague is based on the idea that courts should apply the law that exists at the time they issue their decisions. “Teague,” the government emphasizes, “should not be interpreted to invite, let alone require, lower courts to second-guess this Court’s decisions by trying to anticipate whether a future Court would adhere to them.” Like Louisiana, the federal government pushes back against Edwards’ contention that jury unanimity is necessary to guard against wrongful convictions. If “juror disagreement were in itself enough to substantially call into question the fairness and accuracy of a conviction,” the government writes, “then the remedy for a hung jury — which by definition includes jurors who refuse to find guilt — would be an acquittal, rather than a retrial.”
The fact that the justices were so divided on the question of whether and why the Sixth Amendment guarantees a right to a unanimous jury verdict suggests that they are likely to be equally divided on whether that right now applies retroactively, particularly now that the late Justice Ruth Bader Ginsburg – who was in the majority in Ramos – has been replaced by Justice Amy Coney Barrett. We’ll likely know more about the justices’ views after Wednesday’s argument.
This post was originally published at Howe on the Court.