Opposition Brief — David Wayne Sims, Petitioner v. Louisiana

Supreme Court briefMar 23, 2018

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No. 17-7002

In the Supreme Court of the Gnited States

+e —

DAVID WAYNE SIMS,

Petitioner,

LOUISIANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

BRIEF IN OPPOSITION

JEFF LANDRY

Attorney General

ELIZABETH BAKER MURRILL

Solicitor General

COLIN CLARK*

Assistant Solicitor General

*Counsel of Record

Office of the Attorney General

Louisiana Department of Justice

1885 N. Third St.

Baton Rouge, LA 70804

(225) 326-6200

clarkc@ag.louisiana.gov

JOHN F, DEROSIER

District Attorney,

Parish of Calcasieu

CARLA S. SIGLER

KAREN C. MCLELLAN

Assistant District Attorneys

901 Lakeshore Drive, Suite 800

Lake Charles, LA 70601

(337) 437-3400

csigler@cpdao.org

QUESTION PRESENTED

Whether this Court should overrule Apodaca v. Oregon, 406 U.S. 404 (1972) and

hold that the Sixth Amendment, as incorporated through the Fourteenth Amendment,

guarantees a state criminal defendant the right to a unanimous jury verdict.

TABLE OF CONTENTS

QUESTION PRESENTED u.ssssssscssssesseseescsssscsnesscsusnorscssssesnssassuenesaneaesusaseseseceansusesesenerscaueatenseassesseaseseesesueasencseseesetsateessaeaes I

TABLE OF CONTENTS uscsssssssssessssescscsssssssceusussesvacssososssacsuavesususveseueueaeatsvscsossessvegussaususunssasscsssessesesessoeoeavasseresssstsesesseeses I

TABLE OF AUTHORITIES ..csssesssssesessesecassecssssessssscsusssssesessecsssesessussusussasavcaseaesesaeeaeserassatsuenseseseeanessaeescsessestenseacsseaenens III

STATEMENT OF THE CASE u.sssssssscsscessssssecsessnscscsecsessssessssussssssssacsuaneassscssssescsesssassusssasansaneneasseeseseassesessesssserasaeeataneasares 1

REASONS FOR DENYING THE PETITION .vsssessssssescsssssosssssesusususvesescsescscsessseatsescsuscaenvsarsescasscssesssssegeasesesretensesssessaness 3

A. The Doctrine of Stare Decisis Counsels Against Overruling Apodaca v. Oregon.......4

1. This Court’s stare decisis jurisprudence shows that this petition is

not worthy of a Grant Of CELtION ATT ......csessesssctesesetsssesseseeteseereeneeeestensnneneenseeaesees 4

2. This Court’s recent Sixth Amendment cases do not cast doubt upon

APOC. sessserssssesscsseesesuvsveessensesucssesnensteneeacenseqsesusneessessesesssesasenseseneseseneeasensecaseetentenseenents 7

B. Petitioner’s Historical Arguments Provide no Reason to Revisit ADOddCQ ecu 8

1. Neither the text of the Sixth Amendment nor intent of the Founders

suggests that the Sixth Amendment contains a requirement of

UTLONTINIEY cacsessesseccsesesseanenencencaneneatsessesesneseseosseseanensecenensaseassnenssesesosesseanenseneeeseneeasenseeenns 8

C. The Petitioner’s Incorporation and Historical Racial Discrimination Arguments

do not Warrant Certiorari C1the ro... cececseccssssssessseetecsesnseseesessvseseecsecareaseneeeneeeneeseeeanenseseneens 14

1. Unanimity is not subject to incorporation because it is nota

fundamental right Of trial PrOCCAUIEC....seeceesseesseesiieseesseseneeensenetenenestnnsseesseessees 14

2. The history of Louisiana does not counsel in favor of overruling

APOC csesssessessesseseessessessecuccacenecesesueesestesseestestenecsuesuenenatentensaeateatsoreuceeneaenteeteeneenseaees 16

3. Other procedural safeguards and policy considerations further

undermine any purported need to revisit APOCOCA vssssessssseressesseteseetessencens 18

CONCLUSION uesessssssscsssssssseesseesessessessesssesssecseseneestsaneestsssesseaseeeueeasesnesonseouseatesesneesnsesseessuseateasesecesnranseseseaeeausanessneeness 21

TABLE OF AUTHORITIES

Constitutional Provisions

Del. Decl. of Rights and Constitution, § 14 (Sept. 11, 1776)... ssssssessssesstesstecstsesesesserresnmeseessnenes 11

LA. CONST. art. 1, § 17 vcccccceesssesssssssssseessssssseesssesneesneessmesstosssesssesssessauaseveseveserseensssnseestssnenanesssessaesiecateensenss 17,18

N.C. Const. Of 1776, Art. DX cccccsccssssessssssssssscssscsssssssesssssssssessssscssssssssaversrivecssensevsvssnseesensssesenesensestesscesesnasens 12

N.Y. Const. Of 1777, § XXXV veccccccsssesssssesscsesesesecsnssscsssssssesvsvsceususcscscsseesevesususessseseseveveuevavsssessessesusesuerenseneaess 12

N.Y. Const. Of 1777, § XLI eceseesssssesssseesssesstesseesasesseseosesenessseenseensessusrssensnersecesnecssesevenssersneesesenesssamesassensessseeese 12

Or. Const. art. I, § 11 (1934). cessesssesssssscseseessesscesseseessessesscsessssseneeacenesenseessensceseseeesesesecensesseseeeneeetsatenceness 6

Pa. Const. Of 1776, Art. IX..ceseesssssssesssesssesssessessusssssecsueesneesssssssersseconseesseeneesnsenseessseneseasesaesneesasersuereneesoteneneenes 12

US. Const. 6 AMA ten. cesssessesesetesessasssecnssssenesssencessssessatenesaresessesnesesnecussasenseaeensenssanseseneeacensearsnseaneneense passim

ULS. Const. Art. TID, § 2 ccecescsssessessessssssesssesssesseenessnesssesseecnessusenessuseaneesnseneeseeseaticeaessssacesseenesaeeesesaneeanereneaneeeensens 13

Va. Const. Of 1776, § 8 vccccccccssssssssssesssscsessccccesscsescsosesscasseresessuensoneesescsvscsesesessessseesneesesaeeceeevenssnageateveseatonenenes 12

Vt. Const. Of 1786, Art. XU. ssesesesssssssessessessssnessscssneseesnsesenstesseeseessesuseseeasesesssesocenessseesesnesaeseseesesentenensaeees 12

Statutes

Fed. R. Evid. 606(D) wc. esessssssessssesesseesvecsnessessssssseassssensasessssenssesseessessnsesseeresseeseeseseanesessantanseoteatssnssenersneeeeeseneasons 9

La. C.E. art. 606(B) un. escceessessessesstesesssessesseccsesscecasssueeeseeasecnesarecuessveenessnseaesnesateneeearssucsneeatessecseenneessenseneseeneseonees 9

La. RS. L442 eceeesessssssesssessenncesseeseesesssessssssesnssesessscsesssneesecseauessnesseensecaseaneenecaassesavecaeenseaneesesasecsecauesonsnsstansssensaes 16

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) .ecccsessecseesseeeseessecesetesererstessntsacsesssestesesesatenseeeereeneeenensans passim

Apprendi v. New Jersey, 530 U.S. 466 (2000), un. sesessessecesseessertessenesenssssesseesecersrseenesstenseeeseneneeeneeneanaey 8

Barbour v. Louisiana, 562 U.S. 1217 (2011) wcseesssssssssessecssecsseccessesssesaeeseeensenseenessessnessesnsessseaeeseeenesaeenses 4

Batson v. Kentucky, 476 U.S. 79 (1986)... sesesesssessssssssesssesecssescseneeseenessneseesersessnenssssssssasssesseeanseseessesensesens 19

Baumberger Vv. Louisiana, 138 S.Ct. 392 (2017) csesessssssesseesssesscsssseesseessssseensesessnstansssssatsseesseessnsssessesseess 4

Beard v. Banks, 542 U.S. 406 (2004) on eecescecsscssssecseeeeseeseenesacenessnesnesesesssssesesessaeeneeareneesesesseseeeensesuesensseneeseess 6

Berghuis v. Smith, 559 U.S. 314 (2010)... essessssseseecssecneessesssseessessnsseustasesseseseseesesaverseeseseansesuessinsssessses 18

Blakely v. Washington, 542 U.S. 296 (2004) ...cescessesesesseessecseecneesteenessnenessnseneeeusesteetesseeneeensesseeasessenetsaess 8

Bowen v. Oregon, 558 U.S. 815 (2009) cncscsssesessessessssesesseesssesssssssssseseessessesasesssesesssssseeasseeseseessnaseensensees 4

ili

Brown v. Louisiana, 447 U.S. 323 (1980) oe esssecessecsessesseeseesssesesseesesseeseesceneesteasenssseeneestesnmannsassatserseesse 7

Burch Vv. Louisiana, 441 U.S. 130 (1979)..ccessessssssssssssssssssssssesssesssssseeseesecsscsesessnssacsosssucsasesnessnecaneasesuteesesaneses 7

Claudio v. Delaware, 585 A.2d 1278 (Del. 1991) .eeeeecsesssssessssssseecseessneessneeessesenesesersrsiuesssseessnseeneeessens 7

Dickerson v. United States, 530 U.S. 428 (2000)... sesssccssssssssseessesssesssssstscsesesesssecasecssescnsesseesseeesseesseeres 5

Dove v. Louisiana, 2018 U.S. LEXIS 1859 (March 19, 2018) (No. 17-6231) w.essesescteeseeneeneeess 4

Dunn v. United States, 284 U.S. 390 (1932) ncccssssssssssssssssssesstessecsecsssecsssessesssesesssesssesatesseesneescesesessees 15

Fountain v. Delaware, 275 A.2d 251 (Del. 1971) .eeseessessscsesssesneeneessecssesassnesssesseenseseessmeessesneeaeenseensees 11

Herrera v. Oregon, 562 U.S.1135 (2011) .essesseecersnsssssessensserererseeneserenesessaens Vasseseerenseesantentenensoees 4

Hilton v. South Carolina Public Railways Commission, 502 U.S. 197 (1991) wsesssesseseetersterneeens 5

Hurst v. Florida, 202 S0.3d 40 (Fla. 2016) w.ceesesssessecssesssssescssscncsseecseeneesseestesasenesesecasensesscssesseesseeneeestenseease 7

Hurtado v. California, 110 U.S. 516 (1884) oe essessseccssesseccseesstssssesseesessnsenssesutensecasecasecsneesaeeneeraneesesenes 5

In re Winship, 397 U.S. 358 (1970) cesssesssessssssessssesssessssesssesssesseecsusssssesneeserensecssvcesecsecsusesssesererseesaseeserenanenses 14

Louisiana v. Bertrand, 6 S0.3d 738 (La. 2009) ...ecscssssssssssessessessecssesesenesseccnesseseterssssscsneesneeaseeseesseratesnes 3

Louisiana v. Guidry, 221 S0.3d 815 (La. 2017) ce ecessesssessessssssessessesseseseseseserserssesesesesensensnssseneseess 16

Louisiana v. Hankton, 122 So.3d 1028 (La. App. Ct. 2014) vn cessssssessessescseceseneessssessseneesesesneseees 18

Louisiana v. Hankton, 135 S.Ct. 195 (2014) wc eecsecssescseecsescsnessseensescsessvessnserarenseesseensesattsnsessecsaverseesseees 4

Louisiana v. Jackson, 450 S0.2d 621 (La. 1984) we eesesseeseesesssesssesessseesesseesesessseesneessesaneseseseeseseeens 16

Louisiana v. Miller, 568 U.S. 1157 (2013) cscecesesesssecseesesseeseesescseeseesesensesessseesnesnesseesessaseessneseeseseeeeness 4

Louisiana v. Webb, 133 So.3d 258 (La. Ct. App. 2014) ve ecssecessecsecstessesstecteeneeneeeetssesseerseentereteenees 16

Louisiana v. Webb, 135 S.Ct. 1719 (2015) wn eesseessesstecseestsestesseececesesessssssnssseesteeseeseeneeanetsneeseeeseesenseenentane 4

Loving V. Virginia, 388 U.S. 1 (1967)... csssescesstecssesesstecesesecssecserseecseesessussscssnessnsanecseenseanetsneeseneneeansenteneees 14

Malloy v. Hogan, 378 U.S. 1 (1964) we ccceecsessesssesstecneessecseeseeessecseessesseesecsueeecssneesieesesereaseanetsesseseserscasaneaseease 7

Mathis v. United States, 136 S.Ct. 2243 (2016). oececcescsesssssessssescsesseresneecstecstseseessesenttssssssesssasseseesases 15

McDonald v. City of Chicago, 561 U.S. 742, 766 (2010) sssccsteesssisiststissiststiassstitieesteteee 4,5,7

McElveen v. Louisiana, 568 U.S. 1163 (2013) .ceeeeesssesseesesstesseeeeeseeseeceesersssssssessenseesseeneterseseecseeneeterenneeans 4

Mincey v. Vannoy, 138 S.Ct. 394 (2017) .sesccsssessessessesssseesessssssnssesserstsssessesessceteaseseesnessesenessessssssensase 4

Minneapolis & St. Louis Railroad Company v. Bombolis, 241 U.S. 211 (1916)... eesti 5

Montejo v. Louisiana, 556 U.S. 778 (2009) ssveeusesesesnseinettvtvineniseivineietintintietintetennteteteie 5,6

Oregon V. Sagdal, 343 P.3d 226 (Or. 2015) cccsseccesesesecsseenessnerssssecseesessesesesssssenssesenssarsseestssersaeesers 17

Palmer v. Thompson, 403 U.S. 217 (1971) wecsesccsessecssecsessseessnsessessesesssasscesosecasecesesssecerseotssseessassnesenteeness 17

Pearson v. Callahan, 555 U.S. 223 (2009) cssecsecsessessssseseecneecnessesesssssssscssessecesesscecsteasenesssteesseanseassassuaseesse 6

Rauf v. Delaware, 145 A.3d 430 (Del. 2016)... .cssesstesssesssessnessseesseesneessecsseeeseseneessessusenssesereeaserssnensteenees 7

Rose Vv. Mitchell, 443 U.S. 545 (1979)...ccssssecsssssessesscsssssessessssscensessssassacsesssssecsesocsasssssacssesasssetaeneesseesesnsess 19

Schad v. Arizona, 501 U.S. 624 (1991) wceecsecsessssssssesssssssersessneceseessesnerssesseessneesessneeasesseersnessneesaesenes 6,15

Schriro v. Summerlin, 542 U.S. 348 (2004) oe eeesesessesssereneeeseesacesenesasessatessesssessseeamessaesseesseesenensenasny 6

Shelby County v. Holder, 133 S.Ct. 2612, 2628 (2013) wn. ecessssssesessssssessesssesscssesnssseesseensessseseseeneensees 17

Southern Union Co. v. United States, 567 U.S. 343 (2012)... eesessscssecssescseesneesneeneestsssneesteneneesstesnsente 8

Succession of Lauga, 624 S0.2d 1156 (La. 1993) weesssesssesssseseeseessesessseseesssseeasesntesetssnecsseasesseeeatene 16

Taylor v. Louisiana, 419 U.S. 522 (1975) cceecescsssessesneesssecseessesssessssssseensessnsessresacscatsesstsusenseenneenenssessssnees 19

Welch v. Department of Highways & Public Transportation, 483 U.S. 468 (1987) wees 5

Williams V. Florida, 399 U.S. 78 (1970) ..ccssscssssssessesssssssesctecseesccssessessatesseensessssateseseucsscessesateseeessesnvesens passim

Wilson v. Oldfield, 1 Del. Cas. 622 (Del. Ct. Comm’n Pleas 1818)... esseseeseeseeesmsseesseeseenensaiees 11

Yeager v. United States, 557 U.S. 110 (2009)... essessssessessnssstsssnsesssssssesteesnssenesnsneseanesnessensnenseees 15

Other Authorities

1 Annals of Cong. 435 (1789) wc asssessesssscsssnsesnsecssssecseesessesnseessecsssssesaseasesnsensersteneesueesesosesstesaeenseaseeaeesesse 10

4 William Blackstone, Commentaries on the Laws of England 343 (1769).....sesssssssesesertsssieen 8

Harry Kalven, Jr. & Hans Zeisel, The American Jury (Little, Brown and Company 1966) ..6, 20

Hon. Randy J. Holland, Symposium on Tomorrow’s Issues in State Constitutional Law: State

Jury Trials and Federalism: Constitutionalizing Common Law Concepts, 38 VAL. U.L. REV.

373 (2004) ...ceccssceessessescsssseesscnessesesessusestessesussasessessseesscessesosessseseesnessseseesessuesoeacesueasecoeeneesueeseeaseeaenseseneeneanees 11

Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (BasicBooks

Kenneth Klein, Klein, Student Article, Comparative Jury Procedures: What a Small Island

Nation Teaches the United States About Jury Reform, 76 LA. L. REV. 447 (2015) een 16

Legislation.gov.uk, Juries Act 1974,

https://www.legislation.gov.uk/ukpga/1974/23/section/17?view=extent&timeline=tru

e (last accessed March 23, 2018) w..ccsscssesssescseesessneessescssscseessessevecsssesesaessssesnsesareneeesnsecatesssensanesenesases 16

Mar Jimeno-Bulnes, Symposium: The 50th Anniversary of 12 Angry Men: Deliberation in 12

Angry Men, 82 CHI.-KENT L. REV. 759 (2007) oe scssssssssesstessseesstecnsecseecatensesssrsenecnecasensetssnssnseaneenateeanes 16

Michael H. Glasser, Student Comment, Letting the Supermajority Rule: Nonunanimous Jury

Verdicts in Criminal Trials, 24 FLA. ST. U. L. REV. 659 (1997) .ccccccccssccsectesceseeseesecsuesesssesenencsensersnness 17

OFFICIAL JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA (1898).........0 17

Richard H. Menard, Jr., Student Note, Ten Reasonable Men, 38 Am. CRIM. L. REv. 179

(2001) a eeeescssesseesssessseeseessseessscssenecsueesasersueessersueeasessnsesnsessuseeseessseseeesieesueseesensessneeasessnsecatenstessessaesesteenseesatens 19, 20

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Neil H. Cogan ed.,

1997) cccessstsccstesssccnsesssescsstessseceneesasesssscersneessseessessnseessneseaneeestrersveessusessnessseeessversasesemesaneesetesnneeenees 10, 11,12, 13

The Federalist 83 (Easton Press ed. 1979) (Hamilton) oc cesseessssscssssecssterstesessnsestesserersneenseess 11, 13

Valerie P. Hans & Claire M. Germain, Symposium on Comparative Jury Systems: The French

Jury at a Crossroads, 86 CHI.-KENT L. REV. 737 (2011)

STATEMENT OF THE CASE

On May 1, 2015, Petitioner David Wayne Sims was convicted of the aggravated rape

of his step-daughter, D.C., and the sexual battery of his biological daughter, A.C. Pet. App. 1a.

Sims was later sentenced to life imprisonment without parole, probation, or suspension of

sentence for the aggravated rape count and 50 years at hard labor without parole,

probation, or suspension of sentence for the sexual battery count. Pet. App. 1a.

1. When the victims were twelve and eight years old, respectively, they were

interviewed by a children’s advocacy interviewer with the Louisiana Department of

Children and Family Services. Pet. App. 2-3a. During the interview, D.C. stated that when

she was nine years old, her step-father “made her put her mouth on his ‘wrong spot” and

that “he put his ‘wrong spot’ in her ‘wrong spot.” Pet. App. 3a. She further described how

Sims would pull her head towards his penis, would bend her over a table and enter her, and

make her sit on top of him. /d. She stated that white stuff came out of Sims’ penis. Pet. App.

3a. Sims told D.C. not to tell anyone what was going on, because he could go to jail for a long

time. Jd. The other victim, A.C., told interviewers that her father had rubbed her “wrong

spot” over her clothing and that she was aware of something happening to her sister. Pet. _

App. 3a. Both interviews were published to the jury. Id.

The evidence established that both D.C. and Sims are infected with herpes simplex

type 2. Pet. App. 3a. Dr. Rhonda Dickey testified that the herpes simplex type 2 is an “active

contact genital virus” and that it is “a sexually transmitted disease.” Tr. Trans. 41, 50 (April

29, 2015). As A.C. was only touched over her clothing, she did not have the herpes simplex

type 2. See Pet. App. 3a.

2. Sims was indicted for aggravated rape of D.C. and the sexual battery of A.C. Pet.

App. 1a. He later filed a motion requesting a unanimous jury verdict. Pet. App. 4a. In his

motion, Sims asserted that Apodaca v. Oregon, 406 U.S. 404 (1972) incorrectly construed

the Sixth Amendment and that Louisiana’s non-unanimous rule was racially discriminatory

and therefore unconstitutional under the Fourteenth Amendment. Pet. App. 4a; see also

Motion for Special Jury Instruction - Unanimous Verdict with Incorporated Memorandum

(April 20, 2015). The motion was heard and denied as premature. Minute Entry of April 27,

2015. The case then proceeded to trial and, before the jury retired for deliberation, Sims

again objected to the possibility of a non-unanimous jury verdict again and the motion was

denied again. Minute Entry of May 1, 2015.

The jury deliberated for approximately three-and-a-half hours and asked the trial

court two questions before reaching a verdict. Minute Entry of May 1, 2015. The jury found

Sims guilty as charged on both counts. Minute Entry of May 1, 2015. Counsel for Sims

requested that the jury be polled in writing, “whereupon it [was] determined that, as to the

charge of Aggravated Rape, ten (10) Jurors have agreed and two (2) have not agreed.”

Minute Entry of May 1, 2015. But “as to the charge of Sexual Battery, twelve (12) Jurors

have agreed with this verdict.” Minute Entry of May 1, 2015. The written jury poll cards and

trial transcript are consistent with this minute entry. Trial Trans. pp. 79-80 (May 1, 2015).

3. Sims appealed his conviction. Pet. App. 1-6a. He challenged the sufficiency of the

evidence of his guilt, and the constitutionality of his non-unanimous jury verdict relating to

his aggravated rape conviction. Pet. App. 1-6a. Both assignments of error were denied by

the Louisiana Third Circuit Court of Appeal, and the convictions and sentences were

affirmed. Pet. App. 1-6a.

Sims argued that Apodaca v. Oregon would soon be overruled for noncompliance

with the federal rule regarding unanimous jury verdicts, and stated that he was preserving

the issue for further review. Pet. App. 4a. In denying this claim, the court of appeal

reasoned that, in Apodaca, this “Court held that a state court conviction of a crime by less

than a unanimous jury does not violate the right to trial by jury specified by the Sixth

Amendment and made applicable to the states by the Fourteenth Amendment.” Pet. App.

5a. (internal citation omitted). The court of appeal further relied on the Louisiana Supreme

Court’s decision in Louisiana v. Bertrand, 6 So.3d 738, 743 (La. 2009), which affirmed that

non-unanimous jury verdicts do not violate the Fifth, Sixth, or Fourteenth Amendments.

Pet. App. 5a (internal citation omitted). Sims’ equal protection argument was also denied

because, among other reasons, this Court reasoned in Apodaca that there was “no proof for

the notion that a majority will disregard its instructions and cast its votes for guilt or

innocence based on prejudice rather than the evidence.” Pet. App. 5a (quoting Apodaca, 406

U.S. at 413-414).

4. The Louisiana Supreme Court subsequently denied review without comment. Pet.

App. 7a.

REASONS FOR DENYING THE PETITION

Certiorari is unwarranted because Sims fails to show any new or compelling

justification for departing from the doctrine of stare decisis to overrule this Court's holding

in Apodaca v. Oregon, 406 U.S. 404 (1972). No recent developments in this Court’s Sixth

Amendment jurisprudence justify upsetting longstanding precedent in the manner Sims

proposes. To the contrary, this Court has not questioned Apodaca and has cited it without

reservation. And it recently confirmed that Apodaca “does not undermine the wellestablished rule that incorporated Bill of Rights protections apply identically to the States

and the Federal Government.” McDonald v. City of Chicago, 561 U.S. 742, 766, n. 14 (2010).

To Sims’ substantive points, neither the Sixth Amendment nor the Fourteenth (as a

matter of incorporation) requires a unanimous jury verdict in a criminal case. A review of

the original meaning of the Sixth Amendment reveals no reason to revisit the result in

Apodaca. Also, Sims has not shown that Louisiana’s current provisions for less-than-

unanimous jury verdicts were impermissibly motivated by race.

A. The doctrine of stare decisis counsels against overruling Apodaca v.

Oregon.

1. This Court’s stare decisis jurisprudence shows that this petition is not worthy of

a grant of certiorari.

Despite regular invitations to do so, this Court has repeatedly declined to grant

certiorari to review this issue. See, eg. Barbour v. Louisiana, 562 U.S. 1217 (2011);

Louisiana v. Miller, 568 U.S. 1157 (2013); McElveen v. Louisiana, 568 U.S. 1163 (2013);

Louisiana v. Hankton, 135 S.Ct. 195 (2014); Louisiana v. Webb, 135 S.Ct. 1719 (2015);

Baumberger v. Louisiana, 138 S.Ct. 392 (2017); Mincey v. Vannoy, 138 S.Ct. 394 (2017);

Dove v. Louisiana, 2018 U.S. LEXIS 1859 (March 19, 2018) (No. 17-6231); Bowen v. Oregon,

558 U.S. 815 (2009); Herrera v. Oregon, 562 U.S. 1135 (2011). Sims offers no new or

compelling reason to proceed differently here.

Today’s Court would, without doubt, approach a great many of its precedents

differently as matters of first impression.! If, as Sims suggests, that alone is enough to call

those precedents into doubt, then stare decisis has no meaning. The doctrine of stare decisis

“is of fundamental importance to the rule of law” and departures from it demand “special

justification.” Welch v. Department of Highways & Public Transportation, 483 U.S. 468, 494,

495 (1987) (citations omitted). This is true even in constitutional cases. Dickerson v. United

States, 530 U.S. 428, 443 (2000). This Court does not depart from stare decisis absent

“compelling justification” because it “promotes stability, predictability, and respect for

judicial authority.” Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 202

(1991) (citations omitted).

The factors to consider when applying stare decisis are the age of the precedent, the

reliance interests at stake, workability of the earlier decision, and the quality of the

reasoning. Montejo v. Louisiana, 556 U.S. 778, 792-793 (2009). All support leaving Apodaca

undisturbed. First, Apodaca is 46 year's old, and Louisiana (as well as Oregon) has relied on

it since 1972 to instruct jurors in felony trials that they may return non-unanimous

verdicts.

Next, the reliance interests at stake here are high. Overruling Apodaca would bring

great instability and unpredictability to Louisiana and Oregon. Thousands of final

convictions in these two states could be upset if such a new rule were later declared

retroactive. Although the State would contend that a new rule requiring unanimous

1 For example, this Court’s “governing decisions regarding the Grand Jury Clause of the Fifth Amendment and

the Seventh Amendment's civil jury requirement Jong predate the era of selective incorporation.” McDonald,

561 US. at 765, n. 13. This Court’s reasoning, regardless of the potential for a different outcome, would be

different had those issues arisen for the first time today rather than more than a century ago. See Hurtado v.

California, 110 U.S. 516 (1884); Minneapolis & St. Louts Railroad Company v. Bombolis, 241 U.S. 211 (1916).

verdicts in state criminal cases should not be applied retroactively during collateral review,

the outcome of such a hypothetical case is not certain and a flood of defendants

undoubtedly would immediately file motions claiming otherwise. Cf Schriro v. Summerlin,

542 U.S. 348, 353-358 (2004); Beard v. Banks, 542 U.S. 406 (2004). Indeed, one professor

noted that “the number of [Oregon] juries rendering verdicts with one or two holdouts is

25 percent of all juries.” The potential that about one out of every four jury trials since

1934 in two states would need to be retried would create instability, even if this Court left

the decision on retroactivity for another day. See Or. Const. art. I, § 11 (1934).3

Another important stare decisis factor is workability. Montejo, 556 U.S. at 792.

(“[T]he fact that a decision has proved ‘unworkable’ is a traditional ground for overruling

it.”) (citation omitted). The Apodaca and Johnson decisions provide a workable rule that is

both clear and easy to apply here—the verdict in this non-capital felony may be returned

by the concurrence of ten of twelve jurors.* Because these decisions do not defy consistent

application, this factor also weighs against vacating this Court’s precedent. See Pearson v.

Callahan, 555 U.S. 223, 235 (2009).

Furthermore, the Court has not questioned Apodaca and Johnson and has cited one

or both of them without reservation. E.g., Schad, 501 U.S. at 634, n. 5 (plurality) (“a state

criminal defendant, at least in noncapital cases, has no right to a unanimous jury verdict’);

2 Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy, 199 (BasicBooks 1994).

Considering the purpose of Oregon and Louisiana’s non-unanimity rule (judicial efficiency), this number

makes sense because a non-unanimity rule will result in far fewer mistrials. In The American Jury, the authors

found that “[t]he jurisdictions that allow majority verdicts have... 45 per cent fewer hung juries than those

that require unanimity.” Harry Kalven, Jr. & Hans Zeisel, The American Jury, 461 (Little, Brown and Company

1966).

3 Louisiana’s non-unanimous jury verdict rule predates 1934.

4 This Court has never had the opportunity to decide whether the rule of Apodaca would apply to a capital

case. See Schad v, Arizona, 501 U.S. 624, 630 (1991) (plurality opinion). This case does not present that issue.

Burch v. Louisiana, 441 U.S. 130, 136 (1979) (“a jury’s verdict need not be unanimous to

satisfy constitutional requirements”); Brown v. Louisiana, 447 U.S. 323, 330-331 (1980)

(“the constitutional guarantee of trial by jury” does not prescribe “the exact proportion of

the jury that must concur in the verdict.”).°

2. This Court’s recent Sixth Amendment cases do not cast doubt upon Apodaca.

No new developments or re-examination of Founding-era history supports

overruling a decision upon which Louisiana has relied for almost 50 years. This Court’s

decision in McDonald did not provide any new justification for overruling Apodaca. There,

this Court observed that protections within the Bill of Rights that are incorporated apply

identically to the States and the Federal Government. McDonald, 561 U.S. at 765. That rule

was well established by 1972. Cf Malloy v. Hogan, 378 U.S. 1, 10-11 (1964) (“The Court thus

has rejected the notion that the Fourteenth Amendment applies to the States only a

‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’”)

(citation omitted). McDonald did not alter the incorporation test and does not provide a

compelling basis to reconsider Apodaca. Indeed, the McDonald Court agreed that stare

decisis is an acceptable rule of decision: “[I]fa Bill of Rights guarantee is fundamental from

5 On page seven of the petition for certiorari, Sims contends that the issue “has further percolated” in the state

courts of Florida and Delaware. Because no citations are given, the State assumes that Sims is referencing

Hurst v. Florida, 202 So.3d 40, 57-58 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017) and Raufv. Delaware, 145

A.3d 430, 484-485 (Del. 2016). These decisions provide little cause to review the merits of Apodaca. The

Florida Supreme Court distinguished Apodaca on the ground that the Florida Constitution affords criminal

defendants greater rights than those provided by the United States Constitution. Hurst, 202 So.3d at 57-58.

While the Delaware Supreme Court suggested that it was not bound to follow Justice Powell’s reasoning in

Apodaca, it added: “Nevertheless, there is no doubt that unanimous jury verdicts are required by the

Delaware Constitution even though that question is not before us.” Rauf, 145 A.3d at 484-485 (citing, inter

alia, Claudio v. Delaware, 585 A.2d 1278, 1290-1301 (Del. 1991)). Because the Florida Supreme Court relied

upon its own state constitution, and because the Delaware Supreme Court indicated that it would also do so if

asked, their rulings do not say much about the scope of the Sixth Amendment.

an American perspective, then, unless stare decisis counsels otherwise, that guarantee is

_ fully binding on the States...” 561 U.S. at 784-785 (footnote omitted) (plurality).

The other cases cited by Sims, including Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and Southern Union Co. v. United States, 567 U.S.

343 (2012), refer to William Blackstone’s prescription that “the truth of every accusation,

whether preferred in the shape of indictment, information, or appeal, should afterwards be

confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and

neighbours,” Apprendi, 530 U.S. at 477 (quoting 4 William Blackstone, Commentaries on the

Laws of England 343 (1769)). But that quote from the Commentaries was known to the

Founders and in 1972, when Apodaca was decided.

B. Petitioner’s historical arguments provide no reason to revisit Apodaca.

1. Neither the text of the Sixth Amendment nor intent of the Founders suggests

that the Sixth Amendment contains a requirement of unanimity.

Although the Apodaca plurality did not solely rely on history in concluding the Sixth

Amendment contains no requirement of unanimity, it definitively found that the historical

record suggests the Founders did not intend the requirement to be contained within the

Sixth Amendment. 406 U.S. at 409-410 (“One possible inference is that Congress eliminated

references to unanimity and to the other ‘accustomed requisites’ of the jury because those

requisites were thought already to be implicit in the very concept of jury. A contrary

explanation, which we found in Williams to be the more plausible, is that the deletion was

intended to have some substantive effect.”) (citing Williams v. Florida, 399 US. 78, 96-97

(1970)). That finding was correct. Because the original meaning of the right to a jury trial in

the Sixth Amendment does not require a finding of unanimity, the analysis should end. Cf

Crawford v. Washington, 541 U.S. 36 (2004).

History has not changed. As the plurality in Apodaca observed, “the requirement of

unanimity arose during the Middle Ages and had become an accepted feature of the

common-law jury by the 18th century.” 406 U.S. at 407-08 (footnotes omitted).° Yet the

text of the Sixth Amendment does not reference a unanimity requirement. And “the

relevant constitutional history casts considerable doubt on the easy assumption that if a

given feature existed in a jury at common law in 1789, then it was necessarily preserved in

the Constitution.” Jd. at 408-409 (citation and ellipses omitted). A majority of this Court

reached precisely that conclusion in Williams. See 399 U.S. at 92.

As Williams explained, not all common law traditions have been grafted upon the

word “jury” in the Sixth Amendment. The “usual expectation” that a jury would consist of

twelve men did not elevate the rule to constitutional stature. Williams, 399 U.S, at 98, n. 45.

Similarly, although at “common law jurors were forbidden to impeach their verdict, either

by affidavit or live testimony,” the no-impeachment rule is statutory, rather than

constitutional in stature, and subject to exceptions. Pena-Rodriguez v. Colorado, 137 S.Ct.

855, 863 (2017); see also Fed. R. Evid. 606(b); La. C.E. art. 606(B).

The “most salient fact” that shows that the Sixth Amendment does not include a

unanimity requirement is that, as originally proposed by James Madison, the Amendment

required a trial “by an impartial jury of freeholders of the vicinage, with the requisite of

unanimity for conviction, of the right of challenge, and other accustomed requisites.” /d. at

6 This Court has recognized unanimous jury verdicts were not uniformly accepted by American colonists

throughout that entire period of our history in Connecticut, Pennsylvania, and in the Carolinas. Williams, 399

US. at 98, n. 45.

409 (citing 1 Annals of Cong. 435 (1789)). Although other inferences can be drawn from

the refusal to adopt Madison’s language, a plurality of this Court found the “more plausible”

inference to be that “the deletion was intended to have some substantive effect.” Id. at 410

(citation omitted). A majority of this Court found the same inference more plausible in

Williams. 399 U.S. at 97.

What eventually became the Sixth Amendment was sent to a conference committee

after the House of Representatives and the Senate could not agree on the text. Id. at 94-95.

Although the House’s version included Madison’s unanimity requirement, the Senate

deleted it and later refused to adopt a “motion to restore the words providing for trial ‘by

an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of

challenge, and other accustomed requisites.” Id. at 94, n. 37. Later that month, September

1789, Madison wrote a letter to Edmund Pendleton describing the Senate’s position during

the conference committee proceedings. “It was proposed to insert after the word Juries,

‘with the accustomed requisites,’ leaving the definition to be construed according to the

judgment of professional men. Even this could not be obtained...” Id. at 95-96. This

statement suggests that the Senate was concerned with a unanimity requirement separate

and apart from any concerns of the also-deleted vicinage requirement.

James Madison's letter explained that the reason why “the accustomed requisites”

bothered Senate members was because they could not agree on the meaning of the phrase:

“The truth is that in most of the States the practice is different, and hence the irreconcilable

difference of ideas on the subject.”” The proper inference, therefore, is that the Founders

7 The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 481 (Neil H. Cogan ed., 1997).

did not intend for the jury requirement in the Sixth Amendment to include common law

features typical at the time because the matter was considered and rejected.

Madison’s proposal was not the only one that would have had the effect of adopting

a unanimity requirement. The Virginia, North Carolina, Rhode Island, and New York

conventions (as well as the Pennsylvania Minority) offered amendments substantially

similar to Madison’s.® And although Alexander Hamilton was particularly critical of it, there

was a suggestion within the Pennsylvania Minority Report that the first amendments to the

Constitution should include the phrase “Trial by jury shall be as heretofore.”? Yet the

Founders did not adopt it.

By contrast, the 1792 Delaware Constitution provided that institution of a trial by

jury would remain “as heretofore” — as the Pennsylvania Minority would have had the

federal Constitution read. Jd. This commonsense phrase meant that the right to a trial by

jury would also protect ancillary common-law features, like unanimity. And when the time

came, the Delaware Court of Common Pleas interpreted its 1792 state constitutional

provision as requiring “the unanimous consent of an impartial jury.” Hon. Randy J. Holland,

Symposium on Tomorrow’s Issues in State Constitutional Law: State Jury Trials and

Federalism: Constitutionalizing Common Law Concepts, 38 VAL. U.L. REv. 373, 399-400, n.

137 (2004) (quoting Wilson v. Oldfield, 1 Del. Cas. 622, 624-627 (Del. Ct. Comm’n Pleas

1818)) (emphasis added).?° Likewise, Section XXII of New Jersey’s 1776 Constitution would

8 The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 401-402.

9 The Federalist 83, p. 565 (Easton Press ed. 1979) (Hamilton),

10 Delaware's Constitutions have always contained a unanimity requirement because Delaware’s 1776

Declaration of Rights guaranteed unanimity and because “such was the common law rule.” Fountain v.

Delaware, 275 A.2d 251, 251 (Del. 1971) (citation omitted); Wilson, 1 Del. Cas. at 623-627; Del. Decl. of Rights

and Constitution, § 14 (Sept. 11, 1776); The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at

402. Current Article I, § 4 of the Delaware Constitution still provides “Trial by jury shall be as heretofore.”

have retained the common law of England “as have been heretofore practiced in this

Colony...” which would have had the effect of requiring a unanimous verdict. See also N.Y.

Const. of 1777, §§ XXXV, XLI (similar); People v. Olcott, 2 Johns. Cas. 301, 309-310, 1801 N.Y.

LEXIS 54, *15 (Sup. Ct. of Judicature N.Y. 1801).11

Not only could the United States Congress have adopted general language protecting

the right to a trial by jury with the requisites adopted at common law, it could have been

even more explicit. Indeed, “[flour 18th-century state constitutions provided explicitly for

unanimous jury verdicts in criminal cases.” Apodaca, 406 U.S. at 408, n. 3 (citing N. C. Const.

of 1776, Art. IX; Pa. Const. of 1776, Art. IX; Vt. Const. of 1786, Art. XI; Va. Const. of 1776, §

8). Maryland and Delaware should have also been added to that list. Article XIX of

Maryland’s 1776 Constitution required a jury “without whose unanimous consent [the

defendant] ought not to be found guilty.”!2 Section 14 of Delaware’s 1776 Declaration of

Rights similarly guaranteed unanimity in this way.13

If the Founders had wanted to ensure that the Sixth Amendment protected the

common law tradition of unanimity (and a significant number of factions wanted to do

precisely that), they could have done so. “[C]ontemporary legislative and constitutional

provisions indicate that where Congress wanted to leave no doubt that it was incorporating

existing common-law features of the jury system, it knew how to use express language to

that effect.” Williams, 399 U.S. at 97.

11 The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 408, 409.

12 The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 403. Article III also stated in part:

“That the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according

to the course of that law....” Id.; see also Apodaca, 406 U.S. at 408, n. 3 (citing Md. Const. of 1776, Art. III).

13 The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 402.

The Founders also understood that the sovereign would have considerable

deference in determining how the right to a jury trial would be effectuated. In Hamilton’s

Federalist 83, he wrote:

A power to constitute courts is a power to prescribe the mode of trial; and

consequently, if nothing was said in the Constitution on the subject of juries,

the legislature would be at liberty either to adopt that institution or to let it

alone. This discretion, in regard to criminal causes, is abridged by the express

injunction of trial by jury in all such cases....

The Federalist 83, p. 557 (Easton Press ed. 1979) (Hamilton).

Hamilton’s statements suggest that the Founders did not intend for the United

States Constitution to require all of the typical features a common law jury would provide.

Prior to the passage of the Sixth Amendment, the right to a trial by jury in a criminal

case was already protected by Article Ill, § 2 of the Constitution.1* Like the tradition of a

twelve-person jury, the Founders did not understand “the mere reference to ‘trial by jury’

in Article III” to include the requirement of unanimity, “as the subsequent debates over the

Amendments indicate.” Cf Williams, 399 U.S. at 96. Indeed, when George Washington

described the Philadelphia Convention to the Marquis de Lafayette in April 1788 he wrote

that, as to trials by jury, there “was only the difficulty of establishing a mode which should

not interfere with the fixed modes of any of the States, that induced the Convention to leave

it, as a matter of future adjustment.”!5 As a matter of original meaning, therefore, the

substantially similar phrase in the Sixth Amendment that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury...” cannot

be interpreted to contain a requirement of unanimity. As this Court held, “there is

14 U.S. Const. Art. III, § 2 (“The trial of all crimes, except in cases of impeachment, shall be by jury; and such

trial shall be held in the state where the said crimes shall have been committed....”)

1S The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 478.

absolutely no indication in ‘the intent of the Framers’ of an explicit decision to equate the

constitutional and common-law characteristics of the jury.” Id. at 99.

C. The Petitioner’s incorporation and historical racial discrimination

arguments do not warrant certiorari either.

1. Unanimity is not subject to incorporation because it is not a fundamental right

of trial procedure.

The text of the Sixth Amendment does not contain a unanimity requirement. Given

the evidence that the Founders did not intend the Sixth Amendment to implicate a

unanimity requirement, the fact that there is a longstanding—albeit not universal—

tradition of unanimous jury verdicts (see Pet. 11-14) does not prove much.

There is no showing here that liberty or justice does not exist without jury

unanimity. This is not a case like Loving v. Virginia, or the many other cases in this Court’s

history that deal with rights that are personal and substantive. 388 U.S. 1 (1967). Nor is

this unenumerated procedure so rudimentary that a trial is not really a trial without it. By

contrast, “[t]he reasonable-doubt standard plays a vital role in the American scheme of

criminal procedure. It is a prime instrument for reducing the risk of convictions resting on

factual error.” In re Winship, 397 U.S. 358, 363 (1970).

Unanimity cannot be ranked in the same category as Winship or other fundamental

precepts, like the presumption of innocence. As the plurality in Johnson reasoned, “[t]hat

rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it

indicate infidelity to the reasonable-doubt standard.” 406 U.S. at 362. That is so because

convictions are sustained even when “the jury would have been justified in having a

reasonable doubt, even though the trial judge might not have reached the same conclusion

as the jury, and even though appellate judges are closely divided on the issue whether there

was sufficient evidence to support a conviction.” Id. at 362-363 (citations omitted).

Moreover, courts do not question the validity of the jury’s verdict where a nonunanimous jury hangs but the prosecution obtains a conviction after a second trial. “If the

doubt of a minority of jurors indicates the existence of a reasonable doubt, it would appear

that a defendant should receive a directed verdict of acquittal rather than a retrial.” Id. at

363. Further, “there is no general requirement that the jury reach agreement on the

preliminary factual issues which underlie the verdict.” Schad, 501 U.S. at 631 (plurality)

(citation omitted); see also Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). So this

Court also permits jurors to have inconsistent views of the essential facts of a given case.

With enough jurors there will be differences of opinion, no matter the proof. Cf

Johnson, 406 U.S. at 362. (“[T]he State’s proof could perhaps be regarded as more certain if

it had convinced all 12 jurors... it would have been even more compelling if it had been

required to convince and had, in fact, convinced 24 or 36 jurors.”). There is no clear data

that non-unanimous juries are more inaccurate than unanimous juries such that a trial

cannot be considered just if a non-unanimous verdict is rendered.

This Court has held that “a logical inconsistency between a guilty verdict and a

verdict of acquittal does not impugn the validity of either verdict.” Yeager v. United States,

557 U.S. 110, 112 (2009) (citing Dunn v. United States, 284 U.S. 390, 393 (1932), Holmes, J.).

A requirement of unanimity may in fact cause juries to reach a compromise verdict that

bears less resemblance to the admitted evidence than a non-unanimous verdict. For

example, in Louisiana, a jury may be informed of the mandatory minimum penalties

associated with the charges against the defendant. Louisiana v. Guidry, 221 So.3d 815, 817

(La. 2017) (citing Louisiana v. Jackson, 450 So.2d 621, 633-634 (La. 1984)). The jury in this

case was so informed.!6 The two jurors who did not agree that Sims should be found guilty

of aggravated rape may have done so solely because of their discomfort with the

knowledge that a conviction for that crime carries a mandatory penalty of life without

parole, regardless of the evidence. La. R.S. 14:42(D)(1).

Nor, finally, is Apodaca contrary to international practice. England, among other

common law jurisdictions, does not require unanimous criminal verdicts.!? Many other

civilian countries similarly allow non-unanimous criminal jury verdicts. In addition to

English common law, Louisiana law also arises from Spanish and French civilian legal

traditions as both countries ruled Louisiana’s territory. See, e.g., Succession of Lauga, 624

So.2d 1156, 1159 (La. 1993). Neither of those two countries employs a unanimous jury

verdict system.18

2. The history of Louisiana does not counsel in favor of overruling Apodaca.

Sims suggests that Louisiana’s non-unanimous jury verdict system is impermissibly

motivated by race. This argument lacks merit. First, although historical sources show that

delegates at Louisiana’s 1898 Constitutional Convention were impermissibly race-

motivated with regard to some matters, see, e.g., Louisiana v. Webb, 133 So.3d 258, 283-284

16 F.g. Trial Trans, 50, 158, 212, 250, 289 (April 27, 2015).

17 England and Wales have adopted the Juries Act of 1974 and currently permit non-unanimous verdicts if the

deliberations have been lengthy. Legislation.gov.uk, Juries Act 1974,

https://www.legislation.gov.uk/ukpga/1974/23/section/17?view=extent&timeline=true (last accessed

March 23, 2018). Malta, another common law jurisdiction and a part of the British Empire until 1964,

similarly provides for non-unanimous jury verdicts. Kenneth Klein, Student Article, Comparative Jury

Procedures: What a Small Island Nation Teaches the United States About Jury Reform, 76 LA. L. REV. 447, 450-

452 (2015).

18 Mar Jimeno-Bulnes, Symposium: The 50th Anniversary of 12 Angry Men: Deliberation in 12 Angry Men, 82

CHL-KENT L. REV. 759, 765-766 (2007) (Spain); Valerie P. Hans & Claire M. Germain, Symposium on

Comparative Jury Systems: The French Jury at a Crossroads, 86 CHI.-KENT L. REV. 737, 747 (2011) (France).

(La. Ct. App. 2014), it does not follow that every action taken by that Convention was

motivated by racist intent.19 The convention also strove to “[s]hape a judiciary system

which will relieve the parishes of the enormous burden of costs in criminal trials, and... to

present to the people of this State a judiciary system which shall be both efficient and

economical.” Id. at 284 (quoting OFFICIAL JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE

STATE OF LOUISIANA 10 (1898)). As a plurality of this Court noted, “[r]equiring unanimity

would obviously produce hung juries in some situations where nonunanimous juries will

convict or acquit.” Apodaca, 406 U.S. at 411 (footnote omitted).2° There is no convincing

evidence demonstrating that the 1898 Constitution’s authorization of non-unanimous jury

verdicts was based on racism rather than judicial efficiency.21

Moreover, “history did not end in” 1898. Cf Shelby County v. Holder, 133 S.Ct. 2612,

2628 (2013). The 1898 Louisiana Constitution is long defunct, having been superseded by

several more recent state constitutions. Cf Palmer v. Thompson, 403 U.S. 217, 225 (1971)

(observing that if a law is struck down “because of the bad motives of its supporters,” “it

would presumably be valid as soon as the legislature or relevant governing body repassed

19 For example, a mundane matter like an ordinance affecting public roads was unlikely to be motivated by

racial animus. See OFFICIAL JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA 17 (1898).

20 See also n. 2, supra. Reducing hung juries is a laudable goa]. Hung juries crowd courts, place tremendous

emotional and financial strains on defendants, drain state treasuries, and “give the public the impression that

the justice system is not working.” Michael H. Glasser, Student Comment, Letting the Supermajority Rule:

Nonunanimous Jury Verdicts in Criminal Trials, 24 FLA. ST. U. L. REV. 659, 660-661 (1997) (footnotes omitted).

While both the prosecution and the defense can benefit from a retrial after a mistrial because both sides were

given a “dress rehearsal,” mistrials can also indirectly prevent retrials because witnesses disappear, refuse to

testify, or their memories have faded. Id. at 660.

21 See also Oregon v. Sagdal, 343 P.3d 226, 231 (Or. 2015) (“[VJoters would have understood that this

constitutional amendment [contained in Or. Const. art. I, § 11] was intended to increase the efficiency of the

courts by providing for nonunanimous verdicts.”). The Criminal Justice Reform Clinic, participating here as

amicus curiae, paints a quite different picture. But allegations of racial discrimination in Oregon during the

1930s would be an odd reason to find a portion of Louisiana’s 1974 state constitution unconstitutional. See

La. CoNsT. art. 1, § 17(A). This is particularly so because Oregon’s Supreme Court.(in Sagdal) has implied that

racism did not motivate its non-unanimity rule. Presumably the Oregon Supreme Court will have (or has had)

the opportunity to review the findings of the Oregon trial court to which the Criminal Justice Reform Clinic

has referred.

it for different reasons.”). The most recent State Constitution was adopted in 1974 and

allows ten-out-of-twelve verdicts. LA. Const. art. I, § 17(A). Records from the constitutional

convention show this was a considered choice, not motivated by any race animus. “The

revision of a less-than-unanimous jury requirement in the 1974 Constitution was not by

routine incorporation of the previous Constitution’s provisions; the new article was the

subject of a fair amount of debate.” Louisiana v. Hankton, 122 So.3d 1028, 1038 (La. App. Ct.

2014). The “1973 Constitutional Convention debated the issue of less-than-unanimous jury

verdicts when it changed the required number of jurors concurring from nine out of twelve

to ten out of twelve.” Id. The stated purpose (again) was judicial efficiency. Moreover, the

1974 Louisiana Constitution “was adopted by a vote of the people.” /d. There is no

suggestion or contemporary evidence of popular appeals to race as a reason for the

passage of the non-unanimous-verdict provision of the 1974 Constitution, or any that

preceded it. It is this provision, not Article 116 of the 1898 Louisiana Constitution, that

applied to these proceedings.

3. Other procedural safeguards and policy considerations further undermine any

purported need to revisit Apodaca.

This Court has created an elaborate system required by the United States

Constitution to root out racism during jury deliberations. The suggestion that Louisiana’s

rule “disenfranchis[es] African American jurors” is unfounded. Pet. 22, n. 4.

This Court has repeatedly struck down jury systems that exclude racial minorities

from the general jury venire. Pena-Rodriguez, 137 S.Ct. at 867 (collecting cases). Moreover,

the general jury venire must represent a fair cross-section of the community. Berghuis v.

Smith, 559 U.S. 314, 327 (2010). This Court has also prohibited racial discrimination in the

selection of a single grand juror or a single petit juror. Rose v. Mitchell, 443 U.S. 545 (1979);

Batson v. Kentucky, 476 U. S. 79 (1986). Further, “[i]n an effort to ensure that individuals

who sit on juries are free of racial bias, the Court has held that the Constitution at times

demands that defendants be permitted to ask questions about racial bias during voir dire.”

Pena-Rodriguez, 137 S.Ct. at 868 (citations omitted). The Sixth Amendment also demands

that a court consider whether “a juror’s statements indicate that racial animus was a

significant motivating factor in his or her finding of guilt.” /d. at 867. If any Louisiana juror

was significantly motivated to convict a person because of his or her race that conviction

should not stand, regardless of whether the verdict was unanimous.

Sims (on page 22) and the Criminal Justice Reform Clinic (on pages 15-16) seem to

suggest that juries must contain at least three non-white jurors in order for a nonunanimous jury verdict to be reliable. But the ideal of a jury containing a cross-section of

the community was founded upon neutralizing systemic biases as much a possible rather

than ensuring that a certain quota of racial, ethnic, or gender groups exist within every

jury.22 The Apodaca plurality wrote that “[n]o group... has the right to block convictions; it

has only the right to participate in the overall legal processes by which criminal guilt and

innocence are determined.” 406 U.S. at 413.

Moreover, the very idea that a juror should have to be the representative of a larger

identity group in a jury deliberation room is a misunderstanding of the role of a juror.

“[P]eople have sympathies and prejudices, and of course they cannot leave all of them at

the door, but jurors should be encouraged to leave as many as they can. This country has

22 See Richard H. Menard, Jr., Student Note, Ten Reasonable Men, 38 AM. CRIM. L. REV. 179, 192 (2001); see also

Taylor v. Louisiana, 419 U.S. 522,531 (1975).

made great strides, at great expense in blood and money, toward realizing a good and noble

self-image.” Ten Reasonable Men, 38 Am. Crim. L. REv. at 192, n. 47. But “[t]o encourage, or

even to condone, a juror’s approaching his task in terms of whether he has a dog in the fight

is to take a very big step backward.” Id.

A plurality of this Court refused to “assume... that a majority [of a jury] will deprive

a man of his liberty on the basis of prejudice when a minority is presenting a reasonable

argument in favor of acquittal.” Apodaca, 406 U.S. at 413. The suggestion that jury

deliberations are not really deliberations at all because of the non-unanimity rule relies on

an “essential premise, which is that 10 or 11 jurors who are persuaded that a defendant is

guilty will not listen to counter-arguments if it means being late for dinner. It is conceivable

that the average juror is so base, but it seems fairer to assume that most Americans take

the job a bit more seriously....” Ten Reasonable Men, 38 Am. CRIM. L. REV. at 195.

Non-unanimity does not solely benefit either the State or a criminal defendant.

According to Professor Abramson, “[a]ll studies confirm that the ratio of convictions to

acquittals would not significantly change” between unanimous conditions and “9-3 or 10-2

verdict rules.” We the Jury, p. 201; see also Apodaca, 406 U.S. at 411, n. 5 (“The most

complete statistical study of jury behavior has come to the conclusion that when juries are

required to be unanimous, ‘the probability that an acquittal minority will hang the jury is

about as great as that a guilty minority will hang it.’”) (citing The American Jury at 461).

Both in unanimous conditions and non-unanimous conditions, where juries reach a verdict

they convict about two-thirds of the time and acquit one-third of the time. The American

Jury at 461.

The Founders did not intend the Sixth Amendment to include a unanimity

requirement. The suggestion that neither liberty nor justice exists when a non-unanimous

verdict is reached was properly rejected by this Court 46 years ago. There is no compelling

reason to revisit these issues because this Court considered the same arguments (and

essentially the same evidence) in 1972.

CONCLUSION

The State of Louisiana respectfully submits that the petition for a writ of certiorari

should be denied.

Respectfully submitted,

COLIN CLARK