Petition for Writ of Certiorari — Kaunda Lopaz Magee, Petitioner v. Louisiana

NO. ____________

IN THE

____________

KAUNDA LOPAZ MAGEE,

PETITIONER,

V.

STATE OF LOUISIANA ,

RESPONDENT.

____________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

____________

PETITION FOR WRIT OF CERTIORARI

____________

G. Ben Cohen*

Shanita Farris

Erica Navalance

The Promise of Justice Initiative

636 Baronne Street

New Orleans, LA 70113

(504) 529-5955

bcohen@thejusticecenter.org

* Counsel of Record

QUESTION PRESENTED

Whether the Fourteenth Amendment fully incorporates the Sixth

Amendment guarantee of a unanimous verdict?

i

PARTIES TO THE PROCEEDING

The petitioner is Kaunda Lopaz Magee, the defendant and defendantappellant in the courts below. The respondent is the State of Louisiana, the plaintiff

and plaintiff-appellee in the courts below.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................................... i

PARTIES TO THE PROCEEDING ..........................................................................ii

TABLE OF CONTENTS ........................................................................................... iii

TABLE OF AUTHORITIES ........................................................................................ i

PETITION FOR A WRIT OF CERTIORARI ...................................................... - 1 OPINIONS BELOW ................................................................................................ - 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............ - 2 STATEMENT OF THE CASE .................................................................................... 3

SUMMARY OF THE ARGUMENT ........................................................................... 5

I.

This Court Should Grant Certiorari to Consider Whether

Apodaca v. Oregon Should No Longer Stand. ...................................................... 7

A.

The Historical Record is Clear that Unanimity Is an Essential

Component of the Jury Trial Right. ................................................................... 8

B.

Apodaca and Johnson Were Fractured Opinions Without a Coherent

Justification for Non-Unanimous Verdicts, Which Have Subsequently

been Disavowed and Unworthy of Stare Decisis.............................................. 12

1.

This Court has Rejected the Apodaca Concept that Constitutional

Rights Should be Assessed by their Functional Purpose .................................... 12

2.

Since Apodaca, this Court Has Rejected the Concept of Partial

Incorporation ........................................................................................................ 15

3.

The Fractured Nature of Apodaca Undermines its Continued

Vitality............. ..................................................................................................... 16

iii

C.

The Racist Origins and Continued Impact of the Non-Unanimous Jury

Provide Strong Justification for Ensuring that the Fourteenth

Amendment Fully Incorporates the Sixth Amendment .................................. 19

CONCLUSION ........................................................................................................... 24

CERTIFICATE OF SERVICE ................................................................................. 25

APPENDICES

APPENDIX A: State v. Magee, No. 2016-1074, 2017 WL 1376568 (La. App. 1 Cir.

4/12/17).

APPENDIX B: State v. Magee, 2017-KO-1003 (La. 2/23/18), 237 So.3d 514.

iv

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S. 108 (1964) ......................................................................... 19

American Pub. Co. v. Fisher, 166 U.S. 464, 468 (1897) .............................................. 14

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

Benton v. Maryland, 395 U.S. 784 (1969) ................................................................... 19

Blakely v. Washington, 542 U.S. 296, 301, (2004) ...................................................... 17

Crawford v. Washington, 541 U.S. 36 (2004).............................................................. 16

Giles v. California, 128 S. Ct. 2678 (2008).................................................................. 15

Hunter v. Underwood, 471 U.S. 222, 229 (1985) ........................................................ 24

Johnson v. Louisiana, 406 U.S. 356 (1972) ........................................................ passim

Ker v. California, 374 U.S. 23 (1963) .......................................................................... 19

Louisiana v. United States, 380 U.S. 145, 156, 85 S. Ct. 817, 823 (1965 .................. 24

Mapp v. Ohio, 367 U.S. 643 (1961) ............................................................................. 19

McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................. passim

Ohio v. Roberts, 448 U.S. 56 (1980)....................................................................... 11, 16

Pointer v. Texas, 380 U.S. 400 (1965) ......................................................................... 19

S. Union Co. v. United States, 567 U.S. 343, 344 (2012)............................................ 17

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ............................................................ 20

Thompson v. Utah, 170 U.S. 343, 350 (1898) ............................................................. 14

United States v. Booker, 543 U.S. 220, 238, (2005) .................................................... 17

i

United States v. Gaudin, 515 U.S. 506 (1995) ............................................................ 18

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ......................................... 16, 17

Wallace v. Jaffree, 472 U.S. 38 (1985)......................................................................... 19

Walton v. Arizona, 497 U.S. 639 (1990) ...................................................................... 11

Williams v. Florida, 399 U.S. 78, 95 (1970) ................................................................ 13

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 3

La. C.Cr.P. art. 782(A) ................................................................................................... 4

U.S. Const. Amend. VI................................................................................................... 4

U.S. Const. Amend. XIV ................................................................................................ 4

Other Authorities

1 Annals of Cong. 435 (1789) ....................................................................................... 13

1 Hale, The History of the Pleas of the Crown 33 (1736) ............................................ 12

2 Joseph Story, Commentaries on the Constitution of the United States 559 n. 2 (1891)

................................................................................................................................... 13

3 W. Blackstone, Commentaries on the Laws of England 379 (1769) ....................... 12

4 W. Blackstone, Commentaries on the Laws of England 343 (1769) ....................... 12

Aliza Kaplan, Amy Saack, Overturning Apodaca v. Oregon Should Be Easy:

NonUnanimous Verdicts In Criminal Cases Undermine The Credibility Of Our

Justice System, Vol. 95 Oregon Law Review No. 1, 3 (February 2017) ................. 26

Angela A. Allen-Bell, These Jury Systems Are Vestiges of White Supremacy,

Washington Post, 9/22/2017............................................................................... 23, 26

Associated Press, Bid to strike Louisiana's Jim Crow-era jury law advances in state

House

NOLA.com

(2018),

http://www.nola.com/crime/index.ssf/2018/04/bid_to_strike_louisianas_jim_c.html

(last visited May 23, 2018 ........................................................................................ 24

ii

C. Vann Woodward, Origins of the New South, 1877-1913 ....................................... 25

Frye, et al., Justice John Marshall Harlan: Lectures on Constitutional Law, 81 Geo.

Was. L. Rev. 12A, 253 (2013) ................................................................................... 14

Official Journal of the Proceedings of the Constitutional Convention of the State of

Louisiana, 8-9 (1898 ................................................................................................. 22

Robert J. Smith, Bidish J. Sarma, How and Why Race Continues to Influence the

Administration of Criminal Justice, Vol. 72 No. 2 La. Law Rev. 361, 375 (2012) 25

S. Hackney, Populism to Progressivism in Alabama 147 (1969 ................................ 24

Thomas Aiello, Jim Crow’s Last Stand, Nonunanimous Criminal Jury Verdicts in

Louisiana, LSU Press, 2015 .................................................................................... 23

Thomas Aiello, Jim Crow’s Last Stand: Non-Unanimous Criminal Jury Verdicts in

Louisiana, Louisiana State University Press, Baton Rouge, Louisiana, 2015...... 25

W. Billings & E. Haas, In Search of Fundamental Law: Louisiana’s Constitutions,

1812-1874, The Center for Louisiana Studies (1993), pp. 93-109 .......................... 23

iii

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Kaunda Lopaz Magee, respectfully petitions for a writ of certiorari

to the Louisiana First Circuit Court of Appeal in State v. Magee, No. 2016-1074, 2017

WL 1376568 (La. App. 1 Cir. 4/12/17).

OPINIONS BELOW

The judgment of the Louisiana First Circuit Court of Appeal (Appendix “A”) is

an unpublished opinion reported at State v. Magee, No. 2016-1074, 2017 WL 1376568

(La. App. 1 Cir. 4/12/17). See Appendix “A”. The Louisiana Supreme Court’s order

denying review of that decision is reported at State v. Magee, 2017-KO-1003 (La.

2/23/18), 237 So.3d 514, and attached as Appendix “B”.

JURISDICTIONAL STATEMENT

The judgment and opinion of the Louisiana First Circuit Court of Appeal were

entered on April 12, 2017. The Louisiana Supreme Court denied review of that

decision on February 23, 2018. See Appendix A and B. This Court’s jurisdiction is

pursuant to 28 U.S.C. § 1257(a).

-1-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in pertinent

part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury . . . .” U.S. Const. Amend. VI.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. Amend. XIV.

Article 782(A) of the Louisiana Code of Criminal Procedure provides, in

pertinent part: “Cases in which punishment is necessarily confinement at hard

labor shall be tried by a jury composed of twelve jurors, ten of whom must

concur to render a verdict.” La. C.Cr.P. art. 782(A).

.

-2-

STATEMENT OF THE CASE

This was a “he-said, he-said” case. Petitioner, Kaunda Lopaz Magee, was

charged with ten separate non-capital felonies arising from an incident on October 3,

2011. The complainant alleged that Magee had “tied C.G.'s hands in front of him and

forced C.G. to load some of his belongings (including televisions and guns) into his

own truck. After C.G. helped defendant load the truck, defendant forced C.G. to go to

his bedroom, where defendant then tied C.G.'s feet and pulled down C.G.'s pants.

Defendant bent the victim over a bed and anally raped him while wearing a condom.

When defendant finished, he threw C.G. into a closet and drove away in the victim's

truck.” Appendix A, at 2. In a custodial interrogation, Magee explained that “the

sexual act between himself and the victim was consensual and had happened many

times in the past.” Appendix A, at 2. He further stated the victim helped “load his

belongings into his truck in exchange for money he owed defendant.” Id.

The jury returned a 10-2 verdict on eight of the counts, and an 11-1 verdict on

two of the counts—not one of the verdicts was unanimous. Magee was then sentenced

to two life sentences without the benefit of parole or probation, and to thirty years,

twenty-five years, twenty years (on four counts), ten years and two years, all at hard

labor.

Then, deeming this sentence still insufficient, the State filed a habitual

offender bill, and enhanced Mr. Magee’s sentence to seven additional life sentences

without the possibility of parole.

On appeal, Magee’s lawyer raised a single claim, challenging the nonunanimous jury. The Louisiana First Circuit Court of Appeal rejected the argument

3

finding, “Under both state and federal jurisprudence, a criminal conviction by a less

than unanimous jury does not violate a defendant's right to trial by jury specified by

the Sixth Amendment and made applicable to the states by the Fourteenth

Amendment.” Pet. App. “A” at 2a. The court explained:

Defendant suggests that subsequent legal developments since Apodaca

should cause this Court to revisit the issue and find Louisiana's nonunanimous verdict scheme unconstitutional. Even though Apodaca was

a plurality rather than a majority decision, the United States Supreme

Court and other courts have cited or discussed the opinion various times

since its issuance.

Pet. App. at 3a.

Mr. Magee filed an application for writ of review with the Louisiana Supreme

Court, which denied review without reasons. State v. Magee, 2017-KO-1003 (La.

2/23/18), 237 So.3d 514. Appendix “B”.

4

SUMMARY OF THE ARGUMENT

The law is clear: under the Sixth Amendment, a unanimous jury is required.

The vast majority of the Bill of Rights have been fully incorporated and made

applicable to the states through the Fourteenth Amendment.

The Fourteenth

Amendment should incorporate the Sixth Amendment’s guarantee of a unanimous

jury because a) this Court has made clear that the guarantees in the Bill of Rights

must be protected regardless of their current functional purpose; b) this Court has

rejected the notion of partial incorporation or watered down versions of the Bill of

Rights, and c) Louisiana’s non-unanimous jury rule was adopted as part of a strategy

by the Louisiana Constitutional Convention of 1898 to establish white supremacy.

First, this Court has made clear that the guarantees in the Bill of Rights must

be protected regardless of their current functional purpose, based upon the historical

origins of the constitutional protection. This Court has since rejected the hitherto

accepted premise of Apodaca, that constitutional rights should be confirmed based

upon their functional purpose rather than their historical origins. See Crawford v.

Washington, 541 U.S. 36 (2004); Giles v. California, 128 S. Ct. 2678 (2008).

Second, this Court has rejected the notion of partial incorporation or watered

down versions of the Bill of Rights. This Court 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,’ stating that it would be

‘incongruous’ to apply different standards ‘depending on whether the claim was

5

asserted in a state or federal court.’” McDonald v. City of Chicago, 561 U.S. 742, 765

(2010) (citing Malloy v. Hogan, 378 U.S. 1, 10-11 (1964)).

Finally, even if there were an element of the Bill of Rights that need not fully

transfer to the states, jury-unanimity would not be such an element. Louisiana’s nonunanimous jury rule was adopted during the 1898 Louisiana Constitutional

Convention, where the entire point of the Convention was to limit African-American

participation in the democratic process and to “perpetuate the supremacy of the

Anglo-Saxon race in Louisiana.” Official Journal of the Proceedings of the

Constitutional Convention of the State of Louisiana, 8-9 (1898) [hereinafter

“Journal”]. The Fourteenth Amendment was supposed to protect against these racist

purposes, and the rational for incorporation is at its zenith under these

circumstances.

6

REASONS FOR GRANTING THE WRIT

I.

This Court Should Grant Certiorari to Consider Whether Apodaca

v. Oregon Should No Longer Stand.

Louisiana and Oregon are now the only states that allow for non-unanimous

jury verdicts. These provisions were upheld as constitutional in Apodaca v. Oregon,

406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972). Apodaca’s

plurality was made up of two distinct, inconsistent, and practically contradictory

perspectives, both of which have since been disavowed.

First, the four-person

plurality recognized that the common law long-required juries to return unanimous

verdicts, Apodaca, at 407-08 & n.2, but relied “upon the function served by the jury

in contemporary society,” 406 U.S. at 410, to conclude that unanimity “was not of

constitutional stature” in criminal cases. 406 U.S. at 406.

Second, Justice Powell offered a never-used-before – never-used-since theory

of partial incorporation of the Sixth Amendment. Justice Powell believed that the

Sixth Amendment required unanimity at the Founding, and in federal cases, but

opined that the protections guaranteed by the Fourteenth Amendment were less than

those offered by the Sixth Amendment. Justice Powell’s curious view on incorporation

has also been exploded by this Court’s recent holding in McDonald. This Court

rejected the City’s claim that Apodaca endorsed a “two-track approach to

incorporation,” id. at 3035 n.14.

There has been a sea-change in constitutional exegesis with regard to both the

application of the Bill of Rights to the states and whether constitutional rights are

merely functional protections since the opinions of Apodaca v. Oregon, 406 U.S. 404

7

(1972), Ohio v. Roberts, 448 U.S. 56 (1980), and Walton v. Arizona, 497 U.S. 639

(1990).

A. The Historical Record is Clear that Unanimity Is an Essential

Component of the Jury Trial Right.

The historical record is clear that unanimity was an essential component of

what was conceived of when the Constitution referred to juries. Indeed, In Johnson

v. Louisiana and Apodaca, all nine justices agreed that at the Founding, unanimity

was required. See Apodaca 406 U.S. at 407-08 (White J, Burger C.J., Blackmun J.,

Rehnquist J.) (“Like the requirement that juries consist of 12 men, the requirement

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

the common-law jury by the 18th century”);

see also Johnson, 406 U.S. at 393

(Douglas, J., Brennan, J., Stewart, J., Marshall, J., dissenting) (“The requirements of

a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are

so embedded in our constitutional law and touch so directly all the citizens and are

such important barricades of liberty that if they are to be changed they should be

introduced by constitutional amendment.”) see id. at 369 (Powell, J., concurring) (“In

an unbroken line of cases reaching back into the late 1800's, the Justices of this Court

have recognized, virtually without dissent, that unanimity is one of the indispensable

features of federal jury trial.”).

As with the reasonable-doubt standard, a jury unanimity requirement “dates

at least from our early years as a Nation.” In re Winship, 397 U.S. 358, 361 (1970),

and in fact from even earlier. Influential British jurists consistently included jury

unanimity as a defining characteristic of the trial by jury. For example, Sir Matthew

8

Hale wrote that, “[t]he law of England hath afforded the best method of trial, that is

possible, of this and all other matters of fact, namely, by a jury of twelve men all

concurring in the same judgment . . . .” 1 Hale, The History of the Pleas of the Crown

33 (1736).

In his Commentaries, Sir William Blackstone noted the critical role a

unanimity requirement can play in ensuring that the Crown not wrongly seize an

individual’s liberty. Blackstone first observed the special risk of “violence and

partiality of judges appointed by the crown” in criminal cases, and the attendant risk

of overzealous prosecution if the power to prosecute were “exerted without check or

control.” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769). Out of

concern for those dangers, “[o]ur law has wisely placed this strong and two-fold

barrier, of a presentment and a trial by jury, between the liberties of the people, and

the prerogative of the crown.” Id. But according to Blackstone, it was not merely the

existence of the jury that provided that barrier; it was the additional requirement

“that the truth of every accusation . . . should afterwards be confirmed by the

unanimous suffrage of twelve of his equals and neighbours.” Id. Perhaps for this

reason, Blackstone explainedthat it is the most transcendent privilege which any

subject can enjoy, or wish for, that he cannot be affected either in his property, his

liberty, or his person, but by the unanimous consent of twelve of his neighbours and

equals. 3 W. Blackstone, Commentaries on the Laws of England 379 (1769).

The Framers carried this perspective with them in crafting the Sixth

Amendment. In its original form, the proposed Amendment provided that, “The trial

9

of all crimes . . . shall be 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. . . .” 1 Annals of Cong. 435 (1789). Although the House ratified that

Amendment in substantially similar form, it underwent considerable transformation

in the Senate, which was “inflexible in opposing a definition of the locality of Juries.

The vicinage they contend is either too vague or too strict a term; . . .” Williams v.

Florida, 399 U.S. 78, 95 (1970) (emphasis in original) (quoting 1 Letters and Other

Writings of James Madison 492-93 (1865)). The debate over the vicinage requirement

ultimately led to the more broadly-worded Sixth Amendment ratified in 1791, but the

historical record contains scant evidence that there was any debate regarding the

unanimity requirement. As this Court has acknowledged, however, losing the explicit

unanimity requirement “is concededly open to the explanation that the ‘accustomed

requisites’ were thought to be necessarily included in the concept of a ‘jury.’”

Williams, 399 U.S. at 97.

The subsequent historical record suggests that this explanation is correct. In

his Commentaries, Justice Joseph Story wrote, “A trial by jury is generally

understood to mean . . . a trial by jury of twelve men . . . who must unanimously

concur in the guilt of the accused . . . . Any law, therefore, dispensing with any of

these requisites, may be declared unconstitutional.” 2 Joseph Story, Commentaries

on the Constitution of the United States 559 n. 2 (1891). In a series of lectures on the

Constitution, Justice John Marshall Harlan asked “whether a state may dispense

with a petit jury or modify the trial as it was at the time of the adoption of the

10

Constitution? I answer unhesitatingly that no court of the United States . . . can

sentence any man upon the return of a verdict of jury in which all the jury have not

concurred.” Frye, et al., Justice John Marshall Harlan: Lectures on Constitutional

Law, 81 Geo. Was. L. Rev. 12A, 253 (2013). Indeed, Justice Harlan went even further,

in language reminiscent of Blackstone’s appreciation of the importance of a

unanimity requirement:

The glory of our civilization is that we do have some regard for human

life and human liberty when a man’s life is at stake, or when his liberty

is put at stake. I have heard that three-fourths might be sufficient to

agree to a verdict. I think that a unanimous verdict is required under

this Constitution in the Courts of the United States.

Id. at 252.

This Court’s own precedent provides support for this conclusion, as well. After

recognizing the historical roots of jury unanimity as one of the essential components

of trial by jury, this Court held it “must consequently be taken that the word ‘jury’

and the words ‘trial by jury’ were placed in the Constitution of the United States with

reference to the meaning affixed to them in the law as it was in this country and in

England at the time of the adoption of that instrument; . . . .” Thompson v. Utah, 170

U.S. 343, 350 (1898). 1

1 One year earlier, this Court also noted, in the civil context, that “unanimity was one of

the peculiar and essential features of trial by jury at the common law. No authorities are

needed to sustain this proposition. Whatever may be true as to legislation which changes any

mere details of a jury trial, it is clear that a statute which destroys this substantial and

essential feature thereof is one abridging the right.” American Pub. Co. v. Fisher, 166 U.S.

464, 468 (1897). Surely, if unanimity was “substantial and essential” in civil cases, it was

even more important in criminal cases, where individuals face deprivation of property, life,

and liberty.

11

B. Apodaca and Johnson Were Fractured Opinions Without a

Coherent Justification for Non-Unanimous Verdicts, Which Have

Subsequently been Disavowed and Unworthy of Stare Decisis.

Principles of stare decisis are at their nadir where a case depends upon a

plurality opinion in which no five Justices are able to muster a controlling view

concerning the law. Additionally, the inconsistent and practically contradictory

perspectives in the Apodaca plurality have since been disavowed. First, Apodaca’s

four-person plurality concluded that unanimity “was not of constitutional stature” in

criminal cases, 406 U.S. at 406, although it recognized the long-standing common law

requirement for juries to return unanimous verdicts, 406 U.S. at 407-08 & n.2.

Second, Justice Powell’s concept of “partial incorporation” can no longer be considered

good law.

1. This Court has Rejected the Apodaca Concept that

Constitutional Rights Should be Assessed by their Functional

Purpose

This Court has subsequently broadly rejected the idea that the Sixth

Amendment derives its meaning from functional assessments, and has strictly

adhered to historical origins of the amendment. See Crawford v. Washington, 541

U.S. 36 (2004); Giles v. California, 128 S. Ct. 2678 (2008).

This Court no longer measures the value of a constitutional right by the

function that it serves. While the Apodaca plurality focused “upon the function

served by the jury in contemporary society,” 406 U.S. at 410, this Court recently has

made clear that the Sixth Amendment derives its meaning not from functional

assessments of the Amendment’s purposes, but rather from the original

understanding of the guarantees contained therein. In a line of cases beginning with

12

Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court has eschewed a functional

approach to the right to jury trial in favor of the “practice” of trial by jury as it existed

“at common law.” Id. at 480. In the course of holding that all factors that increase a

defendant’s potential punishment must be proven to a jury beyond a reasonable

doubt, this Court emphasized that “[u]ltimately, our decision cannot turn on whether

or to what degree trial by jury impairs the efficiency or fairness of criminal justice.”

Blakely, 542 U.S. at 313. Rather, the controlling value is “the Framers’ paradigm for

criminal justice.” Id.

Similarly, in Crawford v. Washington, 541 U.S. 36 (2004), this Court

abandoned the functional, reliability-based conception of the Confrontation Clause

conceived in Ohio v. Roberts, 448 U.S. 56 (1980), in favor of the common-law

conception of the right known to the Framers. In Giles v. California, 554 U.S. 353

(2008), this Court continued that trend, explaining that “[i]t is not the role of courts

to extrapolate from the words of the Sixth Amendment to the values behind it, and

then to enforce its guarantees only to the extent they serve (in the court’s views) those

underlying values.

The Sixth Amendment seeks fairness indeed—but seeks it

through very specific means . . . that were the trial rights of Englishmen.” Id. at 375.

In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), this Court similarly rejected

an approach to the right to counsel that would have “abstract[ed] from the right to its

purposes” and left it to this Court whether to give effect “to the details.” Id. at 145

(quotation omitted). This pronounced shift in constitutional exegesis—the return to

historical analysis—calls Apodaca into serious question.

13

Moreover, evincing this shift, this Court’s Sixth Amendment jurisprudence

has repeatedly eschewed a functional approach holding firm the applicability of the

longstanding tenet of criminal jurisprudence that the “truth of every accusation be

confirmed by the unanimous suffrage of twelve of his equals and neighbors.” S. Union

Co. v. United States, 567 U.S. 343, 344 (2012) (“The rule that juries must determine

facts that set a fine's maximum amount is an application of the “two longstanding

tenets of common-law criminal jurisprudence” on which Apprendi is based. First, “the

'truth of every accusation' against a defendant 'should afterwards be confirmed by

the unanimous suffrage of twelve of his equals and neighbours.'”); United States v.

Booker, 543 U.S. 220, 238, (2005) (“Regardless of whether Congress or a Sentencing

Commission concluded that a particular fact must be proved in order to sentence a

defendant within a particular range, "[t]he Framers would not have thought it too

much to demand that, before depriving a man of [ten] more years of his liberty, the

State should suffer the modest inconvenience of submitting its accusation to 'the

unanimous suffrage of twelve of his equals and neighbours,'…”); Blakely v.

Washington, 542 U.S. 296, 301, (2004) (“This rule reflects two longstanding tenets of

common-law criminal jurisprudence: that the "truth of every accusation" against a

defendant "should afterwards be confirmed by the unanimous suffrage of twelve of

his equals and neighbours,"…”); Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)

(“As we have, unanimously, explained, the historical foundation for our recognition

of these principles extends down centuries into the common law. "To guard against a

spirit of oppression and tyranny on the part of rulers," and "as the great bulwark of

14

[our] civil and political liberties," … trial by jury has been understood to require 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.”); United States v. Gaudin, 515

U.S. 506, 510-11, 115 S. Ct. 2310, 2313-14 (1995) (“Blackstone described "trial by

jury" as requiring 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 neighbors . . . .”); id at

511 (“Justice Story wrote that the "trial by jury" guaranteed by the Constitution

was "generally understood to mean . . . a trial by a jury of twelve men, impartially

selected, who must unanimously concur in the guilt of the accused before a legal

conviction can be had." This right was designed "to guard against a spirit of

oppression and tyranny on the part of rulers," and "was from very early times insisted

on by our ancestors in the parent country, as the great bulwark of their civil and

political liberties.”).

2. Since Apodaca, this Court Has Rejected the Concept of

Partial Incorporation

Second, Justice Powell offered a theory of partial incorporation of the Sixth

Amendment, unique to Justice Powell, not found anywhere else in this Court’s

jurisprudence.

Justice Powell believed that the Sixth Amendment required

unanimity at the Founding, and in federal cases, but that the protections guaranteed

by the Sixth Amendment were more expansive that those of the Fourteenth

Amendment. This Court’s holding in McDonald now makes clear that Justice Powell’s

15

creative view on incorporation is not constitutionally acceptable. This Court rejected

the City’s claim that Apodaca endorsed a “two-track approach to incorporation,” id.

at 3035 n.14. Instead, the Court left no doubt that it “abandoned 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.” Id. at 3035 (internal quotation

marks and citation omitted). The Court has made clear that “[t]he relationship

between the Bill of Rights’ guarantees and the States must be governed by a single,

neutral principle”: “incorporated Bill of Rights Protections are to be enforced against

the States under the Fourteenth Amendment according to the same standards that

protect those personal rights against federal encroachment.” McDonald v. City of

Chicago, 561 U.S. 742, 765, (2010) (citing inter alia, Mapp v. Ohio, 367 U.S. 643, 65556 (1961); Ker v. California, 374 U.S. 23, 33-34 (1963); Aguilar v. Texas, 378 U.S. 108,

110 (1964); Pointer v. Texas, 380 U.S. 400, 406 (1965); Duncan v. Louisiana, 391 U.S.

145, 149 (1968); Benton v. Maryland, 395 U.S. 784, 794-95 (1969); Wallace v. Jaffree,

472 U.S. 38, 48-49 (1985)).

3. The Fractured Nature of Apodaca Undermines its Continued

Vitality.

Nine justices have essentially agreed that unanimity was required at the

Founding. Eight justices agreed that the Fourteenth Amendment incorporated the

full force of the Sixth Amendment. Five justices agreed that the Sixth Amendment

currently required adherence to its historical origins. And yet the odd configuration

of opinions resulted in a rule permitting non-unanimous verdicts in the States.

Apodaca, therefore, is entitled only to “questionable precedential value.” Seminole

16

Tribe v. Florida, 517 U.S. 44, 66 (1996) (overturning prior decision in part because a

majority of the Court had “expressly disagreed with the rationale of the plurality”

(the concurring opinion providing the fifth vote, as well as the dissent)).

Justice Powell’s peculiar and atypical view of partial incorporation led the

Court to rule by a bare majority that States may convict individuals of crimes

notwithstanding one or two jurors voting “not guilty.” As Justices Douglas, Brennan,

Marshall and Stewart observed, dissenting in Johnson, “[t]he

result of today's

decisions is anomalous: though unanimous jury decisions are not required in state

trials, they are constitutionally required in federal prosecutions. How can that be

possible when both decisions stem from the Sixth Amendment?” 406 U.S. at 383. As

Justice Brennan summed up the situation:

Readers of today’s opinions may be understandably puzzled why

convictions by 11-1 and 10-2 jury votes are affirmed in [Apodaca], when

a majority of the Court agrees that the Sixth Amendment requires a

unanimous verdict in federal criminal jury trials, and a majority also

agrees that the right to jury trial guaranteed by the Sixth Amendment

is to be enforced against the States according to the same standards that

protect that right against federal encroachment. The reason is that

while my Brother Powell agrees that a unanimous verdict is required in

federal criminal trials, he does not agree that the Sixth Amendment

right to a jury trial is to be applied in the same way to State and Federal

Governments.

Johnson, 406 U.S. at 395 (Brennan, J. dissenting).

As this Court observed in

McDonald, the odd accounting of votes undermines the coherence of the Apodaca and

Johnson opinions:

In Apodaca, eight Justices agreed that the Sixth Amendment applies

identically to both the Federal Government and the States. . . .

Nonetheless, among those eight, four Justices took the view that the

Sixth Amendment does not require unanimous jury verdicts in either

17

federal or state criminal trials . . . and four other Justices took the view

that the Sixth Amendment requires unanimous jury verdicts in federal

and state criminal trials . . .

Justice Powell's concurrence in the judgment broke the tie, and he

concluded that the Sixth Amendment requires juror unanimity in

federal, but not state, cases. Apodaca, therefore, does not undermine the

well-established rule that incorporated Bill of Rights protections apply

identically to the States and the Federal Government.

McDonald, 561 U.S. at 766. It is significant to note that the four plurality justices

who held that the Sixth Amendment did not require unanimity did not do so because

of a different view of the original history (compare for instance Justice Stevens’

historical understanding of the Second Amendment in Heller with Justice Scalia’s

historical understanding of the Second Amendment) but rather observed, “Our

inquiry must focus upon the function served by the jury in contemporary society.”

Apodaca, at 410 (plurality of White, J. Blackmun, J., Rehnquist, J., and Burger, CJ).

Although Louisiana courts continue to use this Court’s decision in Apodaca to

justify non-unanimous jury verdicts, this Court’s recent Sixth Amendment

jurisprudence renders Apodaca—both Justice Powell’s partial incorporation theory,

and the plurality’s focus on the function of the jury in contemporary society—

impossible to defend. In fact, this Court’s recent Sixth Amendment decisions have

rejected both theoretical predicates on which the Apodaca plurality opinion is based.

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C. The Racist Origins and Continued Impact of the Non-Unanimous

Jury Provide Strong Justification for Ensuring that the

Fourteenth Amendment Fully Incorporates the Sixth Amendment

The opening address at the 1898 Louisiana Constitutional Convention made

clear that the point of the entire Convention was to limit African-American

participation in the democratic process and to “perpetuate the supremacy of the

Anglo-Saxon race in Louisiana.” Official Journal of the Proceedings of the

Constitutional Convention of the State of Louisiana, 8-9 (1898) [hereinafter

“Journal”].

Closing the Convention, Hon. Thomas J. Semmes celebrated the

putatively successful “mission” of the delegates “to establish the supremacy of the

white race in this state.” Id. at 374.

When discussing the provisions adopted to prevent African-American suffrage,

a like-minded delegate explained:

[T]he Supreme Court of the United States in the Wilson case, referring

to that, said that they had swept the field of expedients, but they were

permissible expedients, and that is what we have done in order to keep

the negro from exercising the suffrage. What care I whether the test we

have put be a new one or an old one? What care I whether it be more or

less ridiculous or not? Doesn’t it meet the case? Doesn’t it let the white

man vote, and doesn’t it stop the negro from voting, and isn’t that what

we came here for? (Applause)

Constitutional Convention of the State of Louisiana, supra, at 380.

19

In his closing remarks, President Kruttschnitt bemoaned that the delegates

had been constrained by the Fifteenth Amendment such that they could not provide

what they would have wished: "universal white manhood suffrage and the exclusion

from the suffrage of every man with a trace of African blood in his veins." Id. at 380.

He went on to proclaim:

I say to you, that we can appeal to the conscience of the nation, both

judicial and legislative and I don’t believe that they will take the

responsibility of striking down the system that we have reared in order

to protect the purity of the ballot box and to perpetuate the supremacy

of the Anglo-Saxon race in Louisiana.

Id. at 381.

The proponents of those rules sometimes tried to justify them under the guise

of cost-saving devices, but commentators have directly linked the diminution of the

jury trial right to the Convention’s larger effort “to consolidate Democratic power in

the hands of the ‘right people,’ thereby bypassing the poorer sorts, just as the suffrage

provision did.” W. Billings & E. Haas, In Search of Fundamental Law: Louisiana’s

Constitutions, 1812-1874, The Center for Louisiana Studies (1993), pp. 93-109. See

also Thomas Aiello, Jim Crow’s Last Stand, Nonunanimous Criminal Jury Verdicts

in Louisiana, LSU Press, 2015; Angela A. Allen-Bell, These Jury Systems Are Vestiges

of White Supremacy, Washington Post, 9/22/2017. The 1898 Convention substantially

diminished the Sixth Amendment jury trial guarantee though non-unanimity rules,

the elimination of misdemeanor juries, and the reduction of jury size for lesser

felonies.

In recent debates in the Louisiana Legislature, John DeRosier, district

attorney in Calcasieu Parish, told the panel that the law's roots in white supremacy

20

are not sufficient enough to change these historically racist provisions: “I've heard a

lot about this system begin adopted as a vestige of slavery. I have no reason to doubt

that. I'm not proud of that, that that's the way it started, but it is what it is…”

Associated Press, Bid to strike Louisiana's Jim Crow-era jury law advances in state

House

NOLA.com

(2018),

http://www.nola.com/crime/index.ssf/2018/04/bid_to_strike_louisianas_jim_c.html

(last visited May 23, 2018).

This Court has previously confronted the uncorrected problems of the 1898

Constitutional Convention. It held:

The need to eradicate past evil effects and to prevent the continuation

or repetition in the future of the discriminatory practices shown to be so

deeply engrained in the laws, policies, and traditions of the State of

Louisiana, completely justified the District Court in entering the decree

it did and in retaining jurisdiction of the entire case to hear any evidence

of discrimination in other parishes and to enter such orders as justice

from time to time might require.

Louisiana v. United States, 380 U.S. 145, 156, 85 S. Ct. 817, 823 (1965).

Whatever the views on partial incorporation of the Fourteenth Amendment in

other contexts, the Sixth Amendment’s guarantee of a unanimous jury verdict is not

the location to provide a watered down version of the Bill of Rights. Louisiana’s nonunanimity rule uniquely strikes at the heart of equality and citizenship.

Like

Alabama’s Constitutional Convention of 1901, the Louisiana Constitutional

Convention of 1898 “was part of a movement that swept the post-Reconstruction

South to disenfranchise blacks.” See Hunter v. Underwood, 471 U.S. 222, 229 (1985)

citing S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Vann

21

Woodward, Origins of the New South, 1877-1913, pp. 321-322 (1971). In Alabama,

like Louisiana:

[t]he delegates to the all-white convention were not secretive about their

purpose. John B. Knox, president of the convention, stated in his

opening address: "And what is it that we want to do? Why it is within

the limits imposed by the Federal Constitution, to establish white

supremacy in this State." 1 Official Proceedings of the Constitutional

Convention of the State of Alabama, May 21st, 1901 to September 3rd,

1901, p. 8 (1940).

Hunter v. Underwood, 471 U.S. at 229. These conventions understood that denial of

suffrage, both from the jury box and the voting poll, through misdemeanor

disenfranchisement, dilution, and other apparatus in a manner that would ensure

the “supremacy” of the Anglo-Saxon race and would avoid the scrutiny of

“Massachusetts judges.” See Official Journal At 381; see also Robert J. Smith, Bidish

J. Sarma, How and Why Race Continues to Influence the Administration of Criminal

Justice, Vol. 72 No. 2 LA. LAW REV. 361, 375 (2012) (“The Delegates achieved these

anti-participation goals not only by restricting access to the ballot box but also by

diluting the voice of members of racial minority groups by allowing non-unanimous

jury verdicts in criminal cases”); id at 376 (noting commentators at the time of

Constitutional Convention’s concern that African-American presence on juries would

prevent convictions, and result in hijacking sentencing outcomes); Thomas Aiello,

Jim Crow’s Last Stand: Non-Unanimous Criminal Jury Verdicts in Louisiana,

Louisiana State University Press, Baton Rouge, Louisiana, 2015; Aliza Kaplan, Amy

Saack, Overturning Apodaca v. Oregon Should Be Easy: NonUnanimous Verdicts In

Criminal Cases Undermine The Credibility Of Our Justice System, Vol. 95 OREGON

22

LAW REVIEW No. 1, 3 (February 2017); .Angela A. Allen-Bell. These Jury Systems are

Vestiges of White Supremacy, Washington Post, Sept. 22, 2017.

The non-unanimous jury rule continues to have the impact that of its original

design. An exhaustive non-partisan analysis of approximately 3,000 felony trials over

the last six years, by the Advocate identified 993 jury verdicts by 12 member jury

verdicts. Forty percent of these trials were non-unanimous. The review revealed that

the combination of prosecutorial strikes and the non-unanimous jury rule effectively

silenced participation by African-American jurors. See Jeff Adelson, Gordon Russell

and John Simerman, How An Abnormal Louisiana Law Deprives, Discriminates and

Drives Incarceration: Tilting the Scales, The Advocate, April 1, 2018, available at

http://www.theadvocate.com/new_orleans/news/courts/article_16fd0ece-32b1-11e88770-33eca2a325de.html.

The recent Advocate article merely confirms what

researchers have previously suggested: that non-unanimity serves to silence minority

jurors. Kim Taylor-Thompson, Empty Votes In Jury Deliberations, 113 Harv. L. Rev.

1261, 1264 (Apr. 2000).

Ultimately, petitioner does not take on the responsibility to prove that the nonunanimous jury verdict proceeds on an unbroken line of racism from 1898 to 2018, or

even that the rule imposed a racist silencing of jurors in his own case. Instead,

petitioner must simply demonstrate that the Fourteenth Amendment incorporation

doctrine should be at its most robust where the history and the impact of the rule has

such a sordid racial component.

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CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully Submitted,

_____________________________

G. Ben Cohen*

Shanita Farris

Erica Navalance

The Promise of Justice Initiative

636 Baronne Street

New Orleans, LA 70113

(504) 529-5955

bcohen@thejusticecenter.org

*Counsel of Record

Dated: May 23, 2018

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CERTIFICATE OF SERVICE

Undersigned counsel certifies that on this date, the 23rd day of May, 2018,

pursuant to Supreme Court Rules 29.3 and 29.4, the accompanying motion for leave

to proceed in forma pauperis and petition for a writ of certiorari was served on each

party to the above proceeding, or that party’s counsel, and on every other person

required to be served, by depositing an envelope containing these documents in the

United States mail properly addressed to each of them and with first-class postage

prepaid.

The names and addresses of those served are as follows:

Warren Montgomery

Colin Clark

District Attorney

Assistant Attorney General

Office of the District Attorney

Louisiana Department of Justice

701 N. Columbia Street

P.O. Box 94005

Covington, LA 50433

Baton Rouge, Louisiana 70804

Phone: (985) 809-8383

Phone: (225) 326-6200

Fax:

Fax: (225) 326-6297

Email: damontgomery@22da.com

Email: ClarkC@ag.louisiana.gov

_______________________________

G. Ben Cohen

25