Petitioners Brief — Evangelisto Ramos, Petitioner v. Louisiana

Supreme Court briefJun 11, 2019

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No. 18-5924

IN THE

EVANGELISTO RAMOS,

Petitioner,

LOUISIANA,

Respondent.

On Writ of Certiorari

to the Court of Appeal of Louisiana, Fourth Circuit

BRIEF FOR PETITIONER

Jeffrey L. Fisher

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Yaira Dubin

O’MELVENY & MYERS

LLP

Times Square Tower

7 Times Square

New York, NY 10036

G. Ben Cohen

Counsel of Record

Shanita Farris

Erica Navalance

THE PROMISE OF JUSTICE

INITIATIVE

1024 Elysian Fields Ave.

New Orleans, LA 70116

(504) 529-5955

bcohen@defendla.org

QUESTION PRESENTED

Whether the Fourteenth Amendment fully

incorporates the Sixth Amendment guarantee of a

unanimous jury verdict to convict.

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ....................................... iv

BRIEF FOR PETITIONER ......................................... 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ...................................... 1

STATEMENT OF THE CASE .................................... 2

A. Historical background .................................... 2

B. Facts and procedural history ......................... 9

SUMMARY OF THE ARGUMENT .......................... 13

ARGUMENT.............................................................. 15

The Sixth Amendment’s Jury Trial Clause

requires a unanimous jury verdict to convict .... 15

A. This Court has repeatedly instructed

that the Jury Trial Clause requires

unanimity ..................................................... 16

B. Contrary to the State’s assertions, this

precedent is correct ...................................... 18

1. The Jury Trial Clause’s historical

origins demand unanimity....................... 18

2. Unanimity remains essential to

fulfilling the Jury Trial Clause’s

purposes .................................................... 27

II. The Fourteenth Amendment requires states

to abide by the unanimity requirement ............. 34

A. This Court’s Fourteenth Amendment

jurisprudence demands jury unanimity

in state criminal trials.................................. 34

iii

B. Stare decisis presents no obstacle here ....... 38

1. Apodaca’s fractured vote deprives

Justice Powell’s controlling opinion of

any precedential effect ............................. 39

2. Even if stare decisis has some purchase

here, Apodaca’s incorporation holding

cannot stand ............................................. 40

CONCLUSION .......................................................... 47

TABLE OF AUTHORITIES

Page(s)

Cases

Adamson v. California,

332 U.S. 46 (1947) ................................................44

Agostini v. Felton,

521 U.S. 203 (1997) ..............................................42

Alabama v. Smith,

490 U.S. 794 (1989) ..............................................43

Alexander v. Choate,

469 U.S. 287 (1985) ..............................................17

Allen v. United States,

164 U.S. 492 (1896) ..............................................29

Alleyne v. United States,

570 U.S. 99 (2015) .......................................... 24, 46

Am. Publ’g Co. v. Fisher,

166 U.S. 464 (1897) .................................. 19, 24, 25

Andres v. United States,

333 U.S. 740 (1948) .................................... 6, 16, 18

Apodaca v. Oregon,

406 U.S. 404 (1972) ...................................... passim

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...................................... passim

Austin v. United States,

509 U.S. 602 (1993) ..............................................35

Ballew v. Georgia,

435 U.S. 223 (1978) .................................. 24, 27, 30

Balzac v. Porto Rico,

258 U.S. 298 (1922) ..............................................27

Batson v. Kentucky,

476 U.S. 79 (1986) ................................................30

Benton v. Maryland,

395 U.S 784 (1969) ................................... 41, 43, 44

Bernal v. Fainter,

467 U.S. 216 (1984) ..............................................38

Betts v. Brady,

316 U.S. 455 (1942) ........................................ 41, 44

Blakely v. Washington,

542 U.S. 296 (2004) ...................................... passim

Blueford v. Arkansas,

566 U.S. 599 (2012) ..............................................29

Burch v. Louisiana,

441 U.S. 130 (1979) ..............................................26

Burnham v. Superior Court,

495 U.S. 604 (1990) ..............................................37

Callan v. Wilson,

127 U.S. 540 (1888) ..............................................21

Cooper v. Oklahoma,

517 U.S. 348 (1996) ........................................ 36, 37

Crawford v. Washington,

541 U.S. 36 (2004) .................................... 20, 25, 28

Descamps v. United States,

570 U.S. 254 (2013) ..............................................18

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................ 20, 22, 25, 26

Duncan v. Louisiana,

391 U.S. 145 (1968) ...................................... passim

Ohio ex rel. Eaton v. Price,

364 U.S. 263 (1960) ..............................................41

Franchise Tax Bd. v. Hyatt,

139 S. Ct. 1485 (2019) ..........................................43

Freeman v. United States,

564 U.S. 522 (2011) ..............................................40

Gideon v. Wainwright,

372 U.S. 335 (1963) .................................. 41, 44, 46

Giles v. California,

554 U.S. 353 (2008) ..............................................20

Guardians Ass’n v. Civil Service Comm’n,

463 U.S. 582 (1983) ..............................................17

Helvering v. Hallock,

309 U.S. 106 (1940) ..............................................41

Herrera v. Wyoming,

No. 17-532, slip op. (May 20, 2019) .....................43

Hibdon v. United States,

204 F.2d 834 (6th Cir. 1953) .......................... 28, 37

Hughes v. United States,

138 S. Ct. 1765 (2018) ..........................................40

Hurst v. Florida,

136 S. Ct. 616 (2016) ............................................42

Johnson v. Louisiana,

406 U.S. 356 (1972) ...................................... passim

Jones v. United States,

526 U.S. 227 (1999) ..............................................32

Kansas v. Ventris,

556 U.S. 586 (2009) ..............................................29

Ex parte Lange,

85 U.S. (18 Wall.) 163 (1873) ...............................22

Louisiana v. United States,

380 U.S. 145 (1965) ...................................... 4, 5, 31

Malloy v. Hogan,

378 U.S. 1 (1964) .......................................... passim

vii

Manson v. Brathwaite,

432 U.S. 98 (1977) ................................................29

Mapp v. Ohio,

367 U.S. 643 (1961) ..............................................44

Maxwell v. Dow,

176 U.S. 581 (1900) ..............................................16

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................... passim

McKoy v. North Carolina,

494 U.S. 433 (1990) ..............................................28

Medina v. California,

505 U.S. 437 (1992) ..............................................36

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ..............................................46

Montana v. Engelhoff,

518 U.S. 37 (1996) ................................................36

Nevada v. Hall,

440 U.S. 410 (1979) ..............................................43

Padilla v. Kentucky,

559 U.S. 356 (2010) ..............................................46

Patterson v. McClean Credit Union,

491 U.S. 164 (1989) ..............................................42

Patton v. United States,

281 U.S. 276 (1930) ..............................................16

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) ................................ 28, 45, 46

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ..................................................39

Pointer v. Texas,

380 U.S. 400 (1965) ........................................ 41, 44

viii

Ex parte Quirin,

317 U.S. 1 (1942) ..................................................27

Ring v. Arizona,

536 U.S. 584 (2002) ........................................ 42, 46

Richardson v. United States,

526 U.S. 813 (1999) ..............................................18

S. Union Co. v. United States,

567 U.S. 343 (2012) ..............................................17

Sanford v. United States,

586 F.3d 28 (D.C. Cir. 2009) ................................27

Seminole Tribe v. Florida,

517 U.S. 44 (1996) .......................................... 39, 40

Smith v. Allwright,

321 U.S. 649 (1944) ..............................................42

Smith v. Texas,

311 U.S. 128 (1940) ..............................................32

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) ..........................................45

State v. Hankton,

122 So. 3d 1028 (La. App. Ct. 2013) .............. 31, 32

State v. Maxie,

No. 13-CR-72522 (La. 11th Jud. Dist.

Oct. 11, 2018) ............................................. 3, 31, 32

State v. Williams,

No. 15-CR-58698 (Or. Cir. Ct. Dec. 15,

2016) ............................................................. passim

Stogner v. California,

539 U.S. 607 (2003) ..............................................25

Strauder v. West Virginia,

100 U.S. 303 (1879) .......................................... 3, 32

Sullivan v. Louisiana,

508 U.S. 275 (1993) ..............................................24

Taylor v. Louisiana,

419 U.S. 522 (1975) ..............................................24

Thompson v. Utah,

170 U.S. 343 (1898) ..............................................16

Timbs v. Indiana,

139 S. Ct. 682 (2019) .................................... passim

Twining v. New Jersey,

211 U.S. 78 (1908) ................................................44

United States v. Booker,

543 U.S. 220 (2005) ........................................ 17, 20

United States v. Burr,

25 F. Cas. 55 (Va. Cir. Ct. Aug. 31, 1807) ...........20

United States v. Easton,

71 M.J. 168 (C.A.A.F. 2012).................................27

United States v. Gaudin,

515 U.S. 506 (1995) .................................. 18, 28, 42

United States v. Lopez,

581 F.2d 1338 (9th Cir. 1978) ..............................33

United States v. Ross,

456 U.S. 798 (1982) ..............................................45

Vasquez v. Hillery,

474 U.S. 254 (1986) ..............................................42

West v. Louisiana,

194 U.S. 258 (1904) ..............................................44

In re Winship,

397 U.S. 358 (1970) ..............................................36

Yeager v. United States,

557 U.S. 110 (2009) ..............................................22

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 3 ......................................21

U.S. Const. amend. I ..................................................20

U.S. Const. amend. II ........................................... 20, 22

U.S. Const. amend. IV ................................................20

U.S. Const. amend. V, Double Jeopardy

Clause ............................................................. 22, 41

U.S. Const. amend. V, Self-Incrimination

Clause ...................................................................35

U.S. Const. amend. VI, Jury Trial

Clause ........................................................... passim

U.S. Const. amend. VI, Confrontation

Clause ............................................................. 20, 41

U.S. Const. amend. VII ..............................................25

U.S. Const. amend. VIII .............................................35

U.S. Const. amend. XIV, Due Process

Clause ........................................................... passim

U.S. Const. amend. XIV, Equal Protection

Clause ...................................................................38

U.S. Const. amend. XIV, Privileges or

Immunities Clause............................... 1, 14, 37, 38

La. Const. of 1898 ......................................... 4, 5, 31, 32

La. Const. of 1898, art. CXVI .......................................5

La. Const. art. I, § 17(A) (1974) ............................... 1, 8

La. Const. art. I, § 17(B) (1974) ...................................9

Or. Const. art. I, § 11....................................................6

P.R. Const. art. II, § 11...............................................27

Statutes

10 U.S.C. § 852 ...........................................................27

28 U.S.C. § 1257(a) .......................................................1

La. Code Crim. Proc. art. 782(A) ....................... 2, 8, 38

La. Code Crim. Proc. art. 905.6 .................................30

La. Sess. Law Serv. Act 722 (2018) .............................9

Or. Rev. Stat. § 163.150(1)(a).....................................30

Legislative Materials

1 Annals of Cong. 435 (1789) .....................................21

Other Authorities

ABA Am. Jury Project, Principles for Juries and

Jury Trials (2005) ................................................30

Abramson, Jeffrey, We, the Jury: The Jury

System and the Ideal of Democracy (1994).... 2, 20

Adelson, Jeff, et al., How an Abnormal Louisiana

Law Deprives, Discriminates and Drives

Incarceration: Tilting the Scales, Advocate

(Apr. 1, 2018)..........................................................9

Adams, John, A Defence of the Constitutions of

Government of the United States of America

(1794) ....................................................................24

Aiello, Thomas, Jim Crow’s Last Stand:

Nonunanimous Jury Verdicts in Louisiana

(2015) .............................................................. 3, 8, 9

Blackstone, William, Commentaries on the Laws

of England (1769) ......................... 17, 19, 25, 32, 45

Constitutional Convention of the State of

Louisiana, Official Journal of the Proceedings

of the Constitutional Convention of the State

of Louisiana (H.J. Hearsey ed., 1898) ...................4

Dane, Nathan, A General Abridgment and Digest

of American Law (1824) .......................................26

xii

Eaton, Amasa M., The Suffrage Clause in the

New Constitution of Louisiana, 13 Harv. L.

Rev. 279 (1899).......................................................4

Frampton, Thomas Ward, The Jim Crow Jury,

71 Vand. L. Rev. 1593 (2018)..................... 4, 32, 33

Frye, Brian L. et al., Lecture from March 12,

1898, in Justice John Marshall Harlan:

Lectures on Constitutional Law, 1897-98,

81 Geo. Was. L. Rev. Arguendo 244 (2013) .........26

Hale, Matthew, History of the Common Law

(4th ed. 1792) .......................................................33

Hale, Matthew, The History of the Pleas of the

Crown (1736) ........................................................19

Kaplan, Aliza B. & Saack, Amy, Overturning

Apodaca v. Oregon Should Be Easy:

Nonunanimous Jury Verdicts in Criminal

Cases Undermine the Credibility of Our

Justice System, 95 Or. L. Rev. 1 (2016) ................5

Kavanaugh, Shane Dixon, Inside the Gangland

Murder That Gave Oregon Its Unusual Jury

System, The Oregonian (Sept. 2017).....................5

Langbein, John H., The English Criminal Trial

Jury on the Eve of the French Revolution,

in The Trial Jury in England, France,

Germany 1700-1900 (Antonio Schioppa ed.,

1987) ............................................................... 19, 21

Letter from James Madison to Edmund

Pendleton (Sept. 14, 1789), in Letters and

Other Writing of James Madison (1865).............23

MacCoun, Robert J. & Tyler, Tom R., The Basis of

Citizens’ Perceptions of the Criminal Jury:

Procedural Fairness, Accuracy, and

Efficiency, 12 L. & Hum. Behav. 333 (1988).......33

xiii

Miller, Robert H., Six of One Is Not a Dozen of

the Other: A Reexamination of Williams v.

Florida and the Size of State Criminal Juries,

146 U. Pa. L. Rev. 621 (1998). .............................23

Perman, Michael, Struggle for Mastery:

Disenfranchisement in the South, 1888-1908

(2001) ......................................................................4

Prentiss Bishop, Joel, Commentaries on the Law

of Criminal Procedure (1866) ..............................26

Riordan, Kate, Ten Angry Men: Unanimous Jury

Verdicts in Criminal Trials and Incorporation

After McDonald, 101 J. Crim. L. &

Criminology 1403 (2011)......................................23

Rose, Reginald, Twelve Angry Men (1955)

(Penguin Grp. 2006).............................................30

Smith, Douglas G., The Historical and

Constitutional Contexts of Jury Reform, 25

Hofstra L. Rev. 377 (1996) ...................................19

Smith, Robert J. & Sarma, Bidish J., How and

Why Race Continues to Influence the

Administration of Criminal Justice in

Louisiana, 72 La. L. Rev. 361 (2012).....................3

Sommers, Samuel R., On Racial Diversity and

Group Decision Making: Identifying Multiple

Effects of Racial Composition on Jury

Deliberations, 90 J. Personality & Soc.

Psychol. 597 (2006) ..............................................33

Story, Joseph, Commentaries on the Constitution

of the United States (1833)..................................24

Story, Joseph, Commentaries on the Constitution

of the United States (1891)..................................26

xiv

Taylor-Thompson, Kim, Empty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1261

(2000) .............................................................. 32, 33

Thayer, James Bradley, A Preliminary Treatise

on Evidence at the Common Law (1898) ...........19

The Complete Bill of Rights: The Drafts, Debates,

Sources, and Origins (Neil H. Cogan ed.,

1997) .....................................................................22

Wilson, James, Works of the Honourable James

Wilson (1804) ................................................. 19, 25

BRIEF FOR PETITIONER

Petitioner Evangelisto Ramos respectfully

requests that this Court reverse the judgment of the

Louisiana Fourth Circuit Court of Appeal.

OPINIONS BELOW

The opinion of the Louisiana Court of Appeal (J.A.

3-23) is published at 231 So. 3d 44. The Louisiana

Supreme Court’s order (J.A. 24) denying review of that

decision is published at 257 So. 3d 679.

JURISDICTION

The opinion of the Louisiana Court of Appeal was

issued on November 2, 2017. The Louisiana Supreme

Court denied review of that decision on June 15, 2018.

Petitioner filed a petition for a writ of certiorari on

September 7, 2018, which this Court granted on March

18, 2019. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Sixth Amendment to the United States

Constitution provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right to a . . .

trial, by an impartial jury.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “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.”

At all times relevant to this case, Section 17(A) of

Article I of the Louisiana Constitution provided in

relevant part: “A case in which the punishment is

necessarily confinement at hard labor shall be tried

before a jury of twelve persons, ten of whom must

concur to render a verdict.”

At all times relevant to this case, article 782(A) of

the Louisiana Code of Criminal Procedure provided in

relevant 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.”

STATEMENT OF THE CASE

Last Term, this Court reaffirmed the “‘wellestablished rule’” that “if a Bill of Rights protection is

incorporated” against the states, “there is no daylight

between the federal and state conduct it prohibits or

requires.” Timbs v. Indiana, 139 S. Ct. 682, 687 & n.1

(2019) (quoting McDonald v. City of Chicago, 561 U.S.

742, 766 n.14 (2010)); see also, e.g., Malloy v. Hogan,

378 U.S. 1, 10-11 (1964). In a footnote, the Court

added: “The sole exception is our holding that the

Sixth Amendment requires jury unanimity in federal,

but not state, criminal proceedings.” Timbs, 139 S. Ct.

at 689 n.1 (citing Apodaca v. Oregon, 406 U.S. 404

(1972)). This case concerns the propriety of that

aberration in this Court’s jurisprudence.

A. Historical background

1. Louisiana became a state in 1812. At the time,

every state in the Union—consistent with the common

law and the uniform practice at the Founding—

required juries to vote unanimously to convict a

defendant of a nonpetty offense. See Jeffrey

Abramson, We, the Jury: The Jury System and the

Ideal of Democracy 179 (1994). For the next threequarters of a century, including when the states

ratified the Fourteenth Amendment, Louisiana, too,

required unanimous jury verdicts in all criminal cases.

Yet following Reconstruction, many in Louisiana

became increasingly concerned about the ability of

African-Americans to exercise “political and legal

power.” State v. Maxie, No. 13-CR-72522 (La. 11th

Jud. Dist. Oct. 11, 2018), J.A. 39 (citing historian’s

expert testimony)1; see also Thomas Aiello, Jim Crow’s

Last Stand: Nonunanimous Jury Verdicts in

Louisiana 22 (2015). In 1896, African-American

citizens flocked to the polls and nearly facilitated the

election of a black governor. Maxie, J.A. 39. And most

relevant here, this Court held in Strauder v. West

Virginia, 100 U.S. 303 (1879), that the Fourteenth

Amendment prohibited excluding residents from jury

duty on the basis of race. As a result, AfricanAmericans increasingly appeared in jury pools and

participated in petit juries. See Maxie, J.A. 39.

White Louisianans responded with alarm to these

developments. In one 1895 trial, for example, the judge

asserted that when African-Americans were included

on juries, “there was no possibility of just verdicts.”

Maxie, J.A. 43. Louisiana newspapers at the time

similarly decried black jurors as ignorant, susceptible

to bribery, and likely to hijack sentencing outcomes.

Robert J. Smith & Bidish J. Sarma, How and Why

Race Continues to Influence the Administration of

In Maxie, the Louisiana District Court held an evidentiary

hearing, and then wrote a detailed opinion, analyzing the origins

and current effects of Louisiana’s nonunanimous verdict rule. The

parties later reached a plea agreement, mooting any appeal. So

petitioner cites the opinion only for its factual findings, not any

legal conclusions. Because the opinion is not readily available

online, it is reproduced at J.A. 25-83.

Criminal Justice in Louisiana, 72 La. L. Rev. 361, 376

& n.80 (2012) (collecting articles).

In 1898, Louisiana called a constitutional

convention—one of several throughout the South that

cemented the legal restrictions of the Jim Crow era.

See Michael Perman, Struggle for Mastery:

Disenfranchisement in the South, 1888-1908, at 16

(2001). As this Court has observed, the purpose of the

convention was to “assur[e] white political supremacy”

in the State. Louisiana v. United States, 380 U.S. 145,

152 (1965); see also Constitutional Convention of the

State of Louisiana, Official Journal of the Proceedings

of the Constitutional Convention of the State of

Louisiana 380-81 (H.J. Hearsey ed., 1898). A

Democratic Party advertisement explicitly rallied

people behind this cause, stating the purpose of the

Convention was to eliminate “the vast mass of

ignorant, illiterate and venal negroes from the

privileges of the elective franchise.” Thomas Ward

Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593,

1612 (2018) (quoting advertisement).

The new constitution that emerged from this

convention imposed, among other things, a poll tax

and a combination literacy test and property

qualification for voting. The 1898 Constitution also

included the infamous Grandfather Clause, exempting

white residents from these requirements. See

Louisiana, 380 U.S. at 147-48; Amasa M. Eaton, The

Suffrage Clause in the New Constitution of Louisiana,

13 Harv. L. Rev. 279, 286-87 (1899).2

As this Court has observed, the State used the Grandfather

Clause and subsequent measures adopted with the same

Louisiana’s 1898 Constitution also changed the

voting rules applicable to juries. Abandoning the

preexisting unanimity requirement, the new

constitution permitted juries to convict a criminal

defendant of any non-capital felony with the

concurrence of only nine of twelve jurors. La. Const. of

1898, art. CXVI.

2. Louisiana remained the only state to permit

nonunanimous jury verdicts for nonpetty convictions

until 1934, when Oregon adopted a comparable law. At

the time, Oregon was roiled by growing nativism and

bigotry, including the rise of the Ku Klux Klan. See

Aliza B. Kaplan & Amy Saack, Overturning Apodaca

v. Oregon Should Be Easy: Nonunanimous Jury

Verdicts in Criminal Cases Undermine the Credibility

of Our Justice System, 95 Or. L. Rev. 1, 4-6 (2016);

State v. Williams, No. 15-CR-58698 (Or. Cir. Ct. Dec.

15, 2016), J.A. 98-99.3

Most notably, Oregonians fixated on the trial of

Jacob Silverman. Silverman was a Jewish man

accused of murder. Kaplan & Saack, supra, at 3;

Williams, J.A. 101. The jury returned a manslaughter

verdict, coming up one vote short of a murder

conviction. Shane Dixon Kavanaugh, Inside the

Gangland Murder That Gave Oregon Its Unusual Jury

System, The Oregonian (Sept. 2017). The Morning

Oregonian responded with furious editorial coverage

objective “with phenomenal success to keep Negroes from voting

in the State.” Louisiana, 380 U.S. at 152. When the clause was

adopted, “approximately 44% of all the registered voters in the

State were Negroes.” Id. at 147. For many decades after, “the

percentage of registered voters in Louisiana who were Negroes

never exceeded one percent.” Id. at 148.

The Williams opinion is reproduced at J.A. 84-124.

complaining that “the vast immigration into America

from southern and eastern Europe, of people

untrained in the jury system,” had made the “jury of

twelve increasingly unwieldy and unsatisfactory.”

Williams, J.A. 102.

In response to rising public anger over the

Silverman trial, the Oregon Legislature proposed a

constitutional amendment to allow convictions for any

crime except first-degree murder so long as ten of

twelve jurors found the defendant guilty. The voter

pamphlet explicitly cited the Silverman trial as

support for the amendment. Williams, J.A. 103. The

press supported the initiative, contrasting “white”

jurors with those of “mixed blood”; warning against

immigrant participation on juries; and claiming that

certain “peoples in the world” were “unfit for

democratic institutions.” Id. 104. Voters passed the

amendment, and it became law shortly thereafter. Id.

102; Or. Const. art. I, § 11.

3. In the 1960s and early 1970s, this Court decided

a series of cases holding that the Fourteenth

Amendment’s Due Process Clause required states to

abide by the provisions of the Bill of Rights. Among

those decisions was Duncan v. Louisiana, 391 U.S. 145

(1968), holding that the Sixth Amendment’s guarantee

of trial by jury applies to the states. Because the Court

had previously held that the Sixth Amendment

required “[u]nanimity in jury verdicts,” Andres v.

United States, 333 U.S. 740, 748 (1948), Duncan gave

rise to the question whether the nonunanimity laws in

Louisiana and Oregon violated the Fourteenth

Amendment.

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

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

considered that question. The result was a tangle of

seven separate opinions. Five Justices adhered to the

Court’s prior decisions holding that the Sixth

Amendment requires unanimity. See Johnson, 406

U.S. at 371 (Powell, J., concurring in the judgment in

Apodaca); see also Apodaca, 406 U.S. at 414 (Stewart,

J., joined by Brennan & Marshall, JJ., dissenting);

Johnson, 406 U.S. at 381-83 (Douglas, J., dissenting in

Apodaca). Four of those five Justices also concluded

the incorporation doctrine required the states to abide

by the Sixth Amendment’s unanimity requirement.

Apodaca, 406 U.S. at 414-15 (Stewart, J., dissenting);

Johnson, 406 U.S. at 380 (Douglas, J., dissenting in

Apodaca). No other outcome, those Justices explained,

was available under the Court’s Fourteenth

Amendment precedent, which established that “once it

is decided that a particular Bill of Rights guarantee

[applies to the states], the same constitutional

standards apply against both the State and Federal

Governments.” Johnson, 406 U.S. at 385 (Douglas, J.,

dissenting in Apodaca) (internal quotation marks and

citations omitted).

Yet Justice Powell refused to follow this

precedent. Instead, he cast his deciding vote based on

his belief that “due process does not require the States

apply the federal jury-trial right with all its gloss.”

Johnson, 406 U.S. at 369-71 (Powell, J., concurring in

the judgment in Apodaca). Justice Powell conceded

that it was “perhaps late in the day” for an expression

of this view. Id. at 375. But he was “unwilling[] to

accept the ‘incorporationist’ notion that jury trial must

be applied with total uniformity” to the states. Id. at

375 n.15.4

In light of this splintered vote, the Court upheld

the practice of allowing criminal convictions where

some jurors disagreed with the verdict. Apodaca, 406

U.S. at 406 & n.1; Johnson, 406 U.S. at 366 (Powell, J.,

concurring in the judgment in Apodaca). As this Court

later put it, Apodaca “held that although the Sixth

Amendment right to trial by jury requires a

unanimous jury verdict in federal criminal trials, it

does not require a unanimous jury verdict in state

criminal trials.” McDonald, 561 U.S. at 766 n.14; see

also Johnson, 406 U.S. at 383 (Douglas, J., dissenting

in Apodaca) (explaining the holding of Apodaca the

same way at the time).

4. Oregon law has not changed since 1972. But in

the years following Apodaca, Louisiana amended—

and then recently abandoned—its nonunanimity rule.

In 1973, the State amended its Constitution to require

ten, instead of nine, out of twelve jurors to concur in a

guilty verdict. See La. Const. art. I, § 17(A) (1974); see

also La. Code Crim. Proc. Ann. art. 782(A) (1974).

Then, in 2015, historian Thomas Aiello published Jim

Crow’s Last Stand, in which he described the

nonunanimity rule as the last remnant of the racist

“redeemer” agenda in the Louisiana legal system.

The four remaining Justices agreed that the Sixth

Amendment applies to the States in the same way it applies to

the federal government, but would have abandoned this Court’s

precedents holding that the Sixth Amendment requires

unanimous verdicts. See Apodaca, 406 U.S. at 406 (opinion of

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

Apodaca) (noting agreement with the Justices who signed Justice

White’s opinion that “the same standards” apply to both the

states and the federal government).

Aiello, supra, at ix. The largest newspaper in

Louisiana, The Advocate, also ran a series of pieces

examining the operation and effects of the State’s

nonunanimity rule. The series, which won a Pulitzer

Prize, included an empirical analysis revealing that

black defendants were significantly more likely than

white defendants to be convicted by nonunanimous

verdicts. Jeff Adelson et al., How an Abnormal

Louisiana Law Deprives, Discriminates and Drives

Incarceration: Tilting the Scales, Advocate (Apr. 1,

2018).

This groundswell culminated in 2018, when the

people of Louisiana voted to repeal the State’s

nonunanimity rule and to replace it with a law

requiring unanimous jury verdicts in every felony

trial.5 The new law, however, applies only

prospectively to crimes committed on or after January

1, 2019. See 2018 La. Sess. Law Serv. Act 722. It does

not apply to cases arising from crimes occurring before

that date, even if the cases have not yet gone to trial

or (as here) are still on direct review.

B. Facts and procedural history

This case arises out of a terrible crime and a

dispute over who committed it.

1. In November 2014, a woman later identified as

Trinece Fedison was found dead by a New Orleans

Although the 2018 law repealed the constitutional

provision dealing with felony trials, it did not expressly abrogate

La. Const. art. I, § 17(B), which allows nonunanimous verdicts

when felonies are tried together with misdemeanors. We are not

aware of post-2018 charges where the State has sought, or a

Louisiana court has accepted, a nonunanimous verdict because

the State tried felonies together with misdemeanors.

police officer. Her body was stuffed into a trash can

that ordinarily sat outside of a church but had been

moved across the street into a nearby alley. She had

been stabbed, and her pants were around her ankles

and her shirt pulled up to her chest. J.A. 17-18.

The day before, Ms. Fedison’s nephew Jerome had

seen Ms. Fedison near the church, chatting with (in his

words) a “Spanish” man. Ms. Fedison had then entered

a house with the man. So, after hearing about his

aunt’s death, Jerome returned to that street. Upon

seeing petitioner Evangelisto Ramos walk out the

front door of the house, Jerome approached and

cornered him. “I know what you did,” Jerome warned.

“You gonna [sic] feel me, partner, for real.” J.A. 6.

Frightened for his life, Mr. Ramos left home and

spent the next few nights in a trailer near the dock

where he worked. He told his manager that he had had

sex with a woman who had later been found dead and

that a family member of the victim had approached

him on the street and threatened to kill him. J.A. 7.

The manager encouraged Mr. Ramos to contact the

police. Mr. Ramos agreed, and the manager arranged

an interview. Id. 7-8.

In the interview, Mr. Ramos told the investigating

detective that the night before Ms. Fedison was found

dead, he had had consensual sex with her at his home.

J.A. 9. He added that they had had sex several times

before. That night, Mr. Ramos continued, Ms. Fedison

had left his house and climbed into a black car with

two men who had flagged her down. R. vol. 1, at 74.

Mr. Ramos also voluntarily agreed to provide a

DNA sample. Resulting lab reports indicated that Mr.

Ramos was one of three sources of DNA found on the

trash can in which the victim’s body had been found.

J.A. 11. When the detective returned to ask Mr. Ramos

about this, Mr. Ramos told him that he had placed a

bag of garbage in the church garbage can after Ms.

Fedison left his house, while on his way to the corner

store. Id. 9; R. vol. 2, at *19.6

2. A grand jury charged Mr. Ramos with a single

count of second-degree murder. Mr. Ramos

maintained his innocence and insisted on a trial.

The State’s case against Mr. Ramos was based on

circumstantial evidence. The State stressed that Mr.

Ramos had been seen with the victim the day before

her death and that he had admitted he had touched

the garbage can in which her body was found. Supp.

Tr. *10-11, *18-19. But the State presented no

eyewitness or physical evidence directly linking Mr.

Ramos to the killing. Even though police officers had

thoroughly searched Mr. Ramos’s home (where, under

the prosecution’s theory, the violent crime would

presumably have taken place), the police had found no

murder weapon, blood from Ms. Fedison, or any trace

physical evidence. See R. vol. 2, at *200.

Instead, the State relied on suppositions and

innuendo. The lead detective testified that Jerome

Fedison and other local residents had told him the

stabbing must have been committed by a “Mexican or

Hispanic” individual, because “they like to use knives.”

J.A. 10. And the prosecution suggested in arguments

to the jury that that the victim must have been

“sexually assault[ed]” or “raped,” id. 16-17—even

falsely suggesting Mr. Ramos was a “sexual assault

Volume two of the trial record does not contain pagination.

Citations (indicated with *) are to the page number of the PDF.

defendant,” R. vol. 2, at *270—despite the fact Mr.

Ramos was not charged with any such offense, J.A. 4.

Mr. Ramos continued to insist he had nothing to

do with the criminal acts against Ms. Fedison. But

even though evidence the State presented against him

was “susceptible of innocent explanation,” J.A. 14, and

he had suggested to the police that Ms. Fedison might

have been killed by two men who picked her up the

evening she was killed, Mr. Ramos’s attorney did not

conduct any independent investigation or put on a

single witness.

After about two hours of deliberation, the jury was

divided. R. vol. 1, at 6, 16. Two jurors believed the

prosecution had failed to prove Mr. Ramos guilty

beyond a reasonable doubt. But ten jurors thought the

State had proven its case against Mr. Ramos. J.A. 4.

Under Louisiana’s then-applicable nonunanimity law,

that was enough for a conviction. The jury thus

stopped deliberating and delivered its verdict.

Upon learning of the jury’s divided vote, Mr.

Ramos moved for a new trial. Renewing a claim the

court had rejected at the outset of trial, he argued that

the U.S. Constitution requires a unanimous verdict for

conviction. See J.A. 1, 20. The court overruled the

motion and entered a guilty verdict. J.A. 5, 22.

Mr. Ramos was sentenced to life in prison without

the possibility of parole. J.A. 5.

3. The Louisiana Court of Appeal affirmed.

J.A. 23. Rejecting the arguments raised by Mr.

Ramos’s appointed counsel, the panel held that

sufficient evidence supported his conviction and that

the prosecution’s unsubstantiated references to

“sexual assault” and rape did not constitute

prosecutorial misconduct. Id. 16, 18-19.

The Court of Appeal also rejected Mr. Ramos’s

contention, which he raised in a separate pro se filing,

that Louisiana’s nonunanimity rule violated the Sixth

and Fourteenth Amendments. “[U]nder current

jurisprudence from the U.S. Supreme Court,” the court

observed, “non-unanimous twelve-person jury verdicts

are constitutional.” J.A. 23.

4. Mr. Ramos sought review from the Louisiana

Supreme Court, renewing his pro se claim that the

nonunanimous verdict in his case violated the U.S.

Constitution. The Court denied review without

assigning reasons. J.A. 2.

5. A few weeks after issuing its opinion in Timbs,

this Court granted certiorari. 139 S. Ct. 1318 (2019).

SUMMARY OF THE ARGUMENT

The Sixth Amendment requires a unanimous

verdict to convict a defendant of a nonpetty offense,

and the Fourteenth Amendment applies that

requirement to the states.

I. The Sixth Amendment’s Jury Trial Clause

requires a unanimous verdict to convict a defendant of

a crime. Although the State resisted this principle in

its brief in opposition, this Court has so held on

multiple occasions stretching back to the nineteenth

century. Five Justices in Apodaca v. Oregon, 406 U.S.

404 (1972), accepted this rule. And the Court has

reiterated it multiple times since.

Even if the issue were not already settled, it would

be clear that the Jury Trial Clause requires a

unanimous vote to convict. The common law

demanded unanimity for hundreds of years leading up

to the Founding, and the Framers codified that

common-law understanding in the Sixth Amendment.

Furthermore, unanimity is vital to carrying out the

purposes of the Jury Trial Clause. The requirement

allows the jury to serve as a check on prosecutorial or

judicial bias; fosters careful deliberation; ensures the

jury’s verdict represents the voice of the whole

community; and promotes public confidence in the

reliability and fairness of the criminal justice system.

II. The Fourteenth Amendment obligates states to

abide by the Sixth Amendment’s unanimity

requirement. The Jury Trial Clause is incorporated

against the states. And this Court has repeatedly

held—including just last Term in Timbs v. Indiana,

139 S. Ct. 682 (2019)—that incorporated provisions of

the Bill of Rights must apply the same way to the

states as they apply to the federal government. Even

apart from those holdings, the Fourteenth

Amendment’s guarantee of procedural due process

directly requires states to follow time-honored

procedures such as the unanimity requirement. So

does the Privileges or Immunities Clause.

To be sure, Justice Powell’s decisive opinion in

Apodaca balked at requiring the states to abide by the

Sixth Amendment’s unanimity requirement. But this

vote need not be accorded stare decisis weight because

all eight other Justices in the Court’s splintered ruling

disagreed with Justice Powell.

At any rate, Justice Powell’s conclusion in Apodaca

cannot stand. His vote contradicted controlling

precedent at the time (that he made no attempt to

distinguish), and this Court has since directly

repudiated the position Justice Powell espoused. The

Court has also consistently made clear that any

reliance interest states may have in prior decisions

declining to require conformance to constitutional

guarantees must give way when necessary for the

populace to enjoy the full protections of the Bill of

Rights. Such is particularly the case where, as here,

the state law at issue broke from centuries of tradition,

depriving racial minorities of the ability to participate

on equal terms in—and to benefit from—a core aspect

of self-governance.

ARGUMENT

The question whether the Constitution permits a

state to convict someone of a crime by a nonunanimous

jury verdict breaks down into two sub-issues: (1)

whether the Sixth Amendment’s Jury Trial Clause

requires unanimity; and (2) if so, whether the

requirement applies to the states by means of the

Fourteenth Amendment. This Court has long held—

and properly so—that the Jury Trial Clause requires

unanimity. Although Justice Powell’s decisive vote in

Apodaca concluded that this particular component of

the Jury Trial Clause does not bind the states, that

vote squarely contradicted this Court’s Fourteenth

Amendment precedent and has since been

unequivocally repudiated. This Court should reverse.

The Sixth Amendment’s Jury Trial Clause

requires a unanimous jury verdict to convict.

The Sixth Amendment guarantees the accused in

a criminal case a “trial, by an impartial jury.” U.S.

Const. amend. VI. This Court has long instructed that

this provision requires unanimous jury verdicts to

convict. Yet the bulk of the State’s brief in opposition

defended the nonunanimous verdict in this case on the

ground that the Sixth Amendment does not require all

jurors to agree the defendant is guilty. BIO 6-12. The

Court should reject that argument.

A. This Court has repeatedly instructed that

the Jury Trial Clause requires unanimity.

1. In a series of decisions dating back to the

nineteenth century, this Court has repeatedly held

that the Sixth Amendment’s Jury Trial Clause

requires unanimous verdicts in criminal trials. The

first time the Court discussed the issue, it pronounced

that the Framers and the ratifying public believed “life

and liberty, when involved in criminal prosecutions,

would not be adequately secured except through the

unanimous verdict of twelve jurors.” Thompson v.

Utah, 170 U.S. 343, 353 (1898) (emphasis added).

Other contemporaneous descriptions of the right to

jury trial are in accord. See Maxwell v. Dow, 176 U.S.

581, 586 (1900); Patton v. United States, 281 U.S. 276,

288 (1930), abrogated on other grounds by Williams v.

Florida, 399 U.S. 78 (1970).

Two generations after first addressing the

unanimity issue, this Court returned to the subject in

Andres v. United States, 333 U.S. 740 (1948). The

issue there was whether a federal murder sentencing

statute allowed juries to impose capital sentences by

nonunanimous votes. See id. at 746-47. Emphasizing

that the Sixth Amendment’s Jury Trial Clause

demands “[u]nanimity in jury verdicts,” the Court

construed the statute to require unanimity “upon both

guilt and whether the punishment of death should be

imposed.” Id. at 748-49.

2. In Apodaca v. Oregon, 406 U.S. 404 (1972), a

majority of the Court agreed yet again that the Sixth

Amendment requires jury unanimity to convict.

Justice Powell accepted the “unbroken line of cases

reaching back into the late 1800’s” holding that, under

the Sixth Amendment, “unanimity is one of the

indispensable features of federal jury trial.” Johnson

v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J.,

concurring in the judgment in Apodaca). Justice

Stewart, writing for three Justices, likewise concluded

that “the Sixth Amendment’s guarantee of trial by jury

embraces a guarantee that the verdict of the jury must

be unanimous.” Apodaca, 406 U.S. at 414-15 (Stewart,

J., joined by Brennan & Marshall, JJ., dissenting).

Justice Douglas similarly maintained that “the

Federal Constitution require[s] a unanimous jury in

all criminal cases.” Johnson, 406 U.S. at 382 (Douglas,

J., joined by Brennan & Marshall, JJ., dissenting in

Apodaca).7

3. Subsequent decisions have continued to

recognize that the Jury Trial Clause requires

unanimity to convict someone of a crime. In a line of

cases involving the scope of the jury trial right, this

Court has repeatedly explained that the Sixth

Amendment requires that “the truth of every

accusation . . . be confirmed by the unanimous

suffrage of twelve of [the defendant’s] equals and

neighbours.” Apprendi v. New Jersey, 530 U.S. 466,

477 (2000) (second emphasis added) (quoting 4

William Blackstone, Commentaries on the Laws of

England *349-50 (1769); accord S. Union Co. v. United

States, 567 U.S. 343, 356 (2012); United States v.

Booker, 543 U.S. 220, 239 (2005); Blakely v.

To be sure, four of these five Justices dissented on other

grounds. But where five Justices expressly embrace a legal

proposition, the consensus of the five Justices prevails over any

separate opinions on that issue. See, e.g., Alexander v. Choate,

469 U.S. 287, 292-93, 293 n.9 (1985) (proposition adopted by one

Justice in the majority and four in dissent in Guardians Ass’n v.

Civil Service Comm’n, 463 U.S. 582 (1983), constituted a

“holding”).

Washington, 542 U.S. 296, 301 (2004); United States

v. Gaudin, 515 U.S. 506, 510 (1995).

The Court has similarly relied on Andres and

Justice Powell’s opinion in Apodaca to hold that “a jury

in a federal criminal case cannot convict unless it

unanimously finds” each element of a crime.

Richardson v. United States, 526 U.S. 813, 817 (1999)

(emphasis added); see also Descamps v. United States,

570 U.S. 254, 269 (2013) (“The Sixth Amendment

contemplates that a jury” will find the essential facts

“unanimously and beyond a reasonable doubt.”).

This Court returned to the subject most recently

in two cases involving the incorporation of other

provisions of the Bill of Rights. Referencing Apodaca,

the Court has noted that “the Sixth Amendment right

to trial by jury requires a unanimous jury verdict in

federal criminal trials.” McDonald, 561 U.S. at 766

n.14; see also Timbs v. Indiana, 139 S. Ct. 682, 687 n.1

(2019) (same). The outcome in Apodaca, this Court has

explained, resulted from Justice Powell’s vote that the

Fourteenth Amendment did not require states to fully

abide by the Sixth Amendment. See McDonald, 561

U.S. at 766 n.14.

B. Contrary to the State’s assertions, this

precedent is correct.

Even if the matter were not already settled by

more than a century of precedent, the history and

purpose of the Jury Trial Clause make clear that the

Clause requires a unanimous verdict to convict.

1. The Jury Trial Clause’s historical origins

demand unanimity.

Unanimity is an aspect of the Sixth Amendment’s

right to trial by jury that is “mandated by history.”

Johnson, 406 U.S. at 370 (Powell, J., concurring in the

judgment in Apodaca).

a. Common law. The State does not dispute that

unanimity was an integral feature of the right to trial

by jury at common law. See BIO 7. Nor could it. This

Court has remarked that this history is so well known

and accepted that “[n]o authorities are needed to

sustain this proposition.” Am. Publ’g Co. v. Fisher, 166

U.S. 464, 468 (1897). Indeed, all nine Justices in

Apodaca agreed on the point. 406 U.S. at 407-08, 408

n.3 (opinion of White, J., joined by Burger, C.J.,

Blackmun & Rehnquist, JJ.); id. at 414 (Stewart, J.,

joined by Brennan & Marshall, JJ., dissenting);

Johnson, 406 U.S. at 382-83, 383 n.2 (Douglas, J.,

dissenting in Apodaca); id. at 371 (Powell, J.,

concurring in the judgment in Apodaca).

In a nutshell: For centuries leading up to the

Founding, the laws of England required unanimous

verdicts. The unanimity requirement was established

in 1367 and became the norm in England during the

fifteenth century. Douglas G. Smith, The Historical

and Constitutional Contexts of Jury Reform, 25

Hofstra L. Rev. 377, 397 (1996) (citing James Bradley

Thayer, A Preliminary Treatise on Evidence at the

Common Law 86-90 (1898)). The leading Founding-era

treatises and scholars all agreed that “trial by jury”

necessarily required a unanimous verdict. See, e.g., 4

Blackstone, Commentaries *350; 1 Matthew Hale, The

History of the Pleas of the Crown 33 (1736); 2 James

Wilson, Works of the Honourable James Wilson 350

(1804). A nonunanimous verdict at common law,

therefore, necessarily resulted in a “mistrial.” John H.

Langbein, The English Criminal Trial Jury on the Eve

of the French Revolution, in The Trial Jury in

England, France, Germany 1700-1900, at 38 (Antonio

Schioppa ed., 1987).

The American colonies retained this aspect of trial

by jury. As noted in Apodaca, “unanimity became the

accepted rule during the 18th century, as Americans

became more familiar with the details of English

common law and adopted those details in their own

colonial legal systems.” 406 U.S. at 408 n.3 (opinion of

White, J.); see also Abramson, supra, at 179.

b. The Founding. When the Framers drafted the

Bill of Rights, they constitutionalized several commonlaw safeguards. It is “widely understood,” for example,

that clauses within the First, Second, and Fourth

Amendments each “codified a pre-existing right.”

District of Columbia v. Heller, 554 U.S. 570, 592

(2008). The Sixth Amendment’s Confrontation Clause

likewise is “most naturally read as a reference to the

right of confrontation at common law,” and this Court

has construed it accordingly. Crawford v. Washington,

541 U.S. 36, 54 (2004); see also Giles v. California, 554

U.S. 353, 375 (2008) (plurality opinion) (Confrontation

Clause codified “the trial rights of Englishmen”).

The Jury Trial Clause is of a piece. See Booker, 543

U.S. at 238 (describing the Jury Trial Clause as rooted

“in the ideals our constitutional tradition assimilated

from the common law”); Blakely, 542 U.S. at 313 (Jury

Trial Clause codifies “the common-law ideal” of trial by

jury). Indeed, “trial by jury” was the “technical phrase”

that the common law used to refer to the procedure of

having a jury render a verdict. United States v. Burr,

25 F. Cas. 55, 141 (Va. Cir. Ct. Aug. 31, 1807). As

elaborated above, this phrase was understood to

denote more than simply having a jury. It necessarily

guaranteed a certain way in which the jury had to

issue a verdict—namely, unanimously. Anything short

of full agreement did not constitute an actual “trial by

jury”; it was a “mistrial.” See Langbein, supra, at 38.8

Pointing to the Jury Trial Clause’s drafting

history, the State protests that “the Founders did not

intend” to carry forward the common law’s unanimity

requirement within the Sixth Amendment. BIO 9

(emphasis added). The original draft of what became

the Sixth Amendment, passed by the House, provided

for 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.” 1 Annals of Cong. 435 (1789).

The Senate, however, significantly pared down the

text to provide for “the right to a speedy and public

trial, by an impartial jury of the State and district

wherein the crime shall have been committed.” U.S.

Const. amend. VI. From this editing, the State

surmises that the Framers deleted the unanimity

language to allow conviction by nonunanimous

verdicts. BIO 9-12.

A majority of the Court in Apodaca was unmoved

by this argument. See Johnson, 406 U.S. at 370-71,

370 n.6 (Powell, J., concurring in the judgment in

Apodaca); Apodaca, 406 U.S. at 414-15 (Stewart, J.,

dissenting); Johnson, 406 U.S. at 382 & n.1 (Douglas,

The Sixth Amendment’s codification of the common-law

conception of trial by jury accords with the provision in Article III

requiring that “the trial of all crimes, except in cases of

impeachment, shall be by jury.” U.S. Const. art. III, § 2, cl. 3

(capitalization altered). As this Court has explained, this

provision “implied a trial in that mode and according to the

settled rules of the common law.” Callan v. Wilson, 127 U.S. 540,

549-50 (1888).

J., dissenting in Apodaca). This Court should turn it

aside again here.

Absent “substantial evidence” to the contrary, this

Court has assumed that constitutional provisions

codifying common-law rights include the historical

components and limitations on those rights. Duncan v.

Louisiana, 391 U.S. 145, 160 (1968). Consider, for

instance, the Double Jeopardy Clause. Madison’s

original draft, approved by the House, protected

against “more than one punishment” for the same

offense. The Complete Bill of Rights: The Drafts,

Debates, Sources, and Origins § 8.1.1.1 (Neil H. Cogan

ed., 1997). The Senate changed the provision to protect

against being put twice in jeopardy of “life or limb.” Id.

at § 8.1.1.23a. Yet this Court has always held the

Double Jeopardy Clause—consistent with its

“common-law ancestry”—protects not just a second

trial where the defendant’s life or limb is on the line,

but against any kind of successive punishment. Yeager

v. United States, 557 U.S. 110, 117 (2009); accord Ex

parte Lange, 85 U.S. (18 Wall.) 163, 170-71 (1873).

Heller provides another example. There, the Court

refused to ascribe meaning to the Framers’ deletion of

a conscientious-objector clause from the original draft

of the Second Amendment. 590 U.S. at 589-90. “It is

always perilous,” the Court explained, “to derive the

meaning of an adopted provision from [language]

deleted in the drafting process.” Id. at 590. This

methodology is especially “dubious” where a

constitutional provision “was widely understood to

codify a pre-existing right, rather than to fashion a

new one.” Id. at 603.

So too here. There are no records of the relevant

Senate debates. Williams, 399 U.S. at 94-95, 95 n.38.

Nor is there mention of the unanimity requirement in

any other record. Nor did anyone ever suggest more

generally that the Jury Trial Clause would not require

adherence to the common law’s core features of trial by

jury. In short, one cannot “divine ‘the intent of the

Framers’ when they eliminated references to the

‘accustomed requisites.’” Apodaca, 406 U.S. at 410

(opinion of White, J.) (citation omitted).9

At most, the removal of the language elaborating

on the concept of “trial by jury” suggests the Sixth

Amendment did not guarantee every “accidental” or

“negligible” feature of the common-law jury. Williams,

399 U.S. at 88, 90, 102. In Williams, the Court relied

on that conception to hold that the Jury Trial Clause

does not require the presence of “precisely 12” jurors.

Id. at 102. The number of jurors, the Court explained,

was a “historical accident, unrelated to the great

As best as scholars can determine, the unanimity

requirement seems to have been deleted incident to a heated

debate over the vicinage requirement. See, e.g., Kate Riordan,

Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and

Incorporation After McDonald, 101 J. Crim. L. & Criminology

1403, 1419-21 (2011); Robert H. Miller, Six of One Is Not a Dozen

of the Other: A Reexamination of Williams v. Florida and the Size

of State Criminal Juries, 146 U. Pa. L. Rev. 621, 639-45 (1998).

At the time, the states had varying practices for determining the

geographical area from which jurors could be drawn. Riordan,

supra, at 1420. Madison’s original draft thus stated simply that

jurors had to be drawn from “the vicinage.” The Senate, however,

did not like “the restraint with respect to vicinage.” Letter from

James Madison to Edmund Pendleton (Sept. 14, 1789), in 1

Letters and Other Writing of James Madison 491 (1865).

Consequently, the Framers forged a compromise to specify a

moderate vicinage requirement. No such variation among the

states or similar controversy existed with respect to unanimity.

Riordan, supra, at 1420.

purposes which gave rise to the jury in the first place.”

Id. at 89-90; see also Ballew v. Georgia, 435 U.S. 223,

229 (1978). Indeed, the rationales for the presence of

twelve jurors at common law ranged from “circular” to

“fanciful,” resting on “little more than mystical or

superstitious insights into the significance of ‘12.’”

Williams, 399 U.S. at 87-88.

By contrast, this Court has held that the Jury

Trial Clause guarantees the integral components of

the common-law right. For example, “the jury verdict

required by the Sixth Amendment is a jury verdict of

guilty beyond a reasonable doubt,” Sullivan v.

Louisiana, 508 U.S. 275, 278 (1993); juries must be

drawn from a fair cross section of the community,

Taylor v. Louisiana, 419 U.S. 522, 526-28 (1975); and

any fact that increases a defendant’s sentencing range

must be proved to the jury, Apprendi, 530 U.S. at 490;

Alleyne v. United States, 570 U.S. 99, 103 (2015).

The requirement of a unanimous verdict was also

a critical component of the common-law right to trial

by jury. As this Court put it over one hundred years

ago, unanimity was one of the “essential features of

trial by jury at the common law.” Am. Publ’g Co., 166

U.S. at 468. The Court had good reason to say so. The

Framers and other learned authorities described

unanimity as “indispensable” to the right to jury trial.

2 Joseph Story, Commentaries on the Constitution of

the United States § 777 (1833). John Adams declared

that the jury unanimity requirement “preserves the

rights of mankind.” 1 John Adams, A Defence of the

Constitutions of Government of the United States of

America 376 (1794). Blackstone was in accord,

proclaiming the protection against conviction absent

the “unanimous consent” of the jury “is the most

transcendent privilege which any subject can enjoy, or

wish for.” 3 Blackstone, Commentaries *379.

Founding Father and Supreme Court Justice

James Wilson articulated at the greatest length why

the common law deemed unanimity “of indispensable

necessity.” Wilson, supra, at 350. He explained that

criminal juries exercise “absolute and discretionary

power” over defendants’ liberty. Id. at 311. He also

cautioned that criminal prosecutions can be infected

by “the concealed and poisoned darts of private

malice.” Id. at 351. In light of these dynamics, a

requirement

“unanimous

and

universal

approbation” ensures a guilty verdict represents “the

judgment of the whole society.” Id. at 311.

Unanimity was deemed so important at common

law that the Framers did not even restrict it to

criminal trials. In American Publishing Co., this Court

made clear that the Seventh Amendment requires a

unanimous verdict in civil cases. 166 U.S. at 467-68.

That being so, it necessarily follows that the

requirement is at least equally “essential” in criminal

trials. Id. at 468. Otherwise, the Constitution would

“grant greater protection . . . to property than to

human liberty,” Stogner v. California, 539 U.S. 607,

631-32 (2003)—an unacceptable result.

c. Post-Founding era. Prominent jurists and

scholars of the nineteenth century confirmed the

public understanding that the Sixth Amendment’s

Jury Trial Clause included the common law’s

unanimity requirement. See, e.g., Heller, 554 U.S. at

597, 608 (relying on such sources to corroborate

original understanding); Apprendi, 530 U.S. at 477

(same); Blakely, 542 U.S. at 301 (same); Crawford, 541

U.S. at 50 (same).

Justice Story, for example, considered the issue in

his “famous Commentaries,” Heller, 554 U.S. at 608.

He explained that the Constitution’s guarantee of

“trial by jury” prohibited any law that dispensed with

the requirement that the jury “unanimously concur in

the guilt of the accused before a legal conviction may

be had.” 2 Joseph Story, Commentaries on the

Constitution of the United States § 1779 (1891).

Other prominent treatises contained similar

declarations. Nathan Dane’s oft-cited 1824 treatise

observed that the Constitution demanded that “the

jury in criminal matters must be unanimous.” 6

Nathan Dane, A General Abridgment and Digest of

American Law 226 (1824). Joel Prentiss Bishop

likewise recognized that, “in a case in which the

constitution guarantees a jury trial,” a statute

allowing “a verdict upon anything short of the

unanimous consent of the twelve jurors” would be

“void.” 1 Joel Prentiss Bishop, Commentaries on the

Law of Criminal Procedure § 897 (1866). The first

Justice Harlan agreed, declaring that “when a man’s

life is put at stake, or when his liberty is put at stake”

in a criminal trial, the Constitution requires “a

unanimous verdict.” Brian L. Frye, et al., Lecture from

March 12, 1898, in Justice John Marshall Harlan:

Lectures on Constitutional Law, 1897-98, 81 Geo. Was.

L. Rev. Arguendo 244, 252 (2013) (quoting Justice

John Marshall Harlan).

The “near-uniform judgment of the Nation” also

“provides a useful guide” to the accepted

understanding of the Jury Trial Clause. Burch v.

Louisiana, 441 U.S. 130, 138 (1979). Throughout

history, nearly all states and the federal government

have required unanimity for all charges that trigger

the right to trial by jury. Nonunanimity in state trials

for nonpetty offenses is an aberration that emerged

only at the dawn of the twentieth century, and only in

two states—one of which has since renounced its

deviation from tradition.10

2. Unanimity remains essential to fulfilling

the Jury Trial Clause’s purposes.

Instead of following history and tradition, four

Justices in Apodaca suggested the meaning of the Jury

Trial Clause should turn on the “function served by the

jury in contemporary society.” 406 U.S. at 410 (opinion

of White, J.). This suggestion contradicts this Court’s

pronouncements that common-law principles—not

modern assessments of purpose—determine the

contours of the Sixth Amendment’s guarantees. See

supra at 15-18. But insofar as the animating purposes

of the Jury Trial Clause are relevant, they only

reinforce that the Clause requires unanimous verdicts

to convict.

The Sixth Amendment guarantees trial by jury for

a few overlapping reasons: to ensure a community

check against prosecutorial zeal or “intimidation”; to

“promote group deliberation”; and to guarantee

decision-making by “a representative cross-section of

the community.” Ballew, 435 U.S. at 229-30 (citation

omitted). This Court has also explained that “a central

Two other U.S. jurisdictions allow convictions for nonpetty

offenses by nonunanimous verdicts: the military and Puerto Rico.

See 10 U.S.C. § 852; P.R. Const. art. II, § 11. But the Sixth

Amendment right to trial by jury does not apply in court-martial

proceedings. See Ex parte Quirin, 317 U.S. 1, 39-40 (1942);

Sanford v. United States, 586 F.3d 28, 35 (D.C. Cir. 2009); United

States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012). Nor does it

apply in Puerto Rico’s courts. See Balzac v. Porto Rico, 258 U.S.

298, 304-09 (1922).

premise of the Sixth Amendment trial right” is to

promote public confidence in the outcomes of criminal

trials. Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869

(2017). Unanimity is vital to each of those purposes.

a. Checking prosecutorial power. Conditioning

criminal punishment on unanimous verdicts serves

the core Sixth Amendment purpose of checking

prosecutorial authority. The power to bring criminal

charges is an awesome one. And that power can be

abused. See Duncan, 391 U.S. at 155-56. Furthermore,

experience teaches that “judges, like other government

officers, [can] not always be trusted to safeguard the

rights of the people”—particularly in “politically

charged cases.” Crawford, 541 U.S. at 67-68.

Requiring a unanimous verdict to convict enables

the jury to serve as a “great bulwark” against these

forces. Gaudin, 515 U.S. at 510-11 (citation omitted).

By requiring all jurors to agree, the Jury Trial Clause

ensures the verdict reflects “the conscience of the

community,” McKoy v. North Carolina, 494 U.S. 433,

452 (1990) (Kennedy, J. concurring), rather than the

whim of a prosecutor or even the passions of a subset

of the jury. See Duncan, 391 U.S. at 156 (Jury Trial

Clause is designed to ensure “community participation

in the determination of guilt or innocence”). Indeed,

the knowledge that a conviction cannot be obtained

absent a unanimous verdict deters prosecutors from

bringing questionable charges in the first place. If a

verdict could be nonunanimous, a “zealous prosecutor

would carry a far lighter burden of persuasion” in such

contestable cases. Hibdon v. United States, 204 F.2d

834, 839 (6th Cir. 1953).

b. Effective deliberation. The criminal justice

system often depends on juries “to weigh the

credibility of competing witnesses,” Kansas v. Ventris,

556 U.S. 586, 594 n.* (2009), or to “measure

intelligently the weight” of “evidence with some

element of untrustworthiness,” Manson v. Brathwaite,

432 U.S. 98, 116 (1977). The jury trial right is

therefore designed to facilitate “a comparison of views”

and to foster debate and “arguments among the jurors

themselves.” Blueford v. Arkansas, 566 U.S. 599, 608

(2012) (quoting Allen v. United States, 164 U.S. 492,

501 (1896)). Through such back and forth, jurors can

evaluate the strength of the evidence, test hypotheses,

and challenge latent assumptions—all in service of the

search for the truth.

Requiring unanimity is central to this process. In

Louisiana, as elsewhere, juries deliberate in private

and are allowed to structure their deliberations

however they wish. They need not express reasons for

their positions before voting. Indeed, jurors may take

a vote immediately upon entering the jury room,

“before discussions begin.” Blueford, 566 U.S. at 607.

Even when jurors exchange perceptions and

arguments, there is no way to referee the interactions

to ensure each person’s point is fairly considered.

Instead of micromanaging juries in any of these

respects (or others), our system ensures meaningful

deliberation by insisting upon unanimity. If one or two

jurors harbor doubt about the prosecution’s theory or

questions regarding the adequacy of defense counsel’s

efforts, they may effectively require the others to

engage in discussion. And that collective discussion

can unlock insights that the jurors individually may

have missed. See Blueford, 566 U.S. at 607 (describing

how “discussions about the circumstances of the crime”

while trying to reach unanimity can cause jurors to

“rethink[]” their positions); Allen, 164 U.S. at 501

(recognizing that jurors’ initial opinions may be

“changed by conference in the jury-room”). To

illustrate the point by way of a cultural touchstone:

Without the unanimity rule, the play Twelve Angry

Men would have ended on page eleven. See Reginald

Rose, Twelve Angry Men act I, at 11 (1955) (Penguin

Grp. ed. 2006).11

Even Louisiana and Oregon have implicitly

recognized the risks inherent in nonunanimous

verdicts. Both states have always required unanimous

verdicts in capital cases, where the risk of a wrongful

conviction is particularly unacceptable. See La. Code

Crim. Proc. art. 905.6; Or. Rev. Stat. § 163.150(1)(a). It

is hard to understand this exception to their general

rule as anything other than a recognition that

unanimous verdicts are more dependable.

c. A representative jury. The Jury Trial Clause is

also designed to ensure that a guilty verdict comes

from “a representative cross-section of the

community.” Ballew, 435 U.S at 230. And for a jury to

be “representative,” the procedures that govern it

must not prevent members of racial minorities from

serving and expressing their views. Batson v.

Kentucky, 476 U.S. 79, 86 n.8 (1986).

To be sure, four Justices in Apodaca surmised there was

“no difference” in the quality of deliberation between juries

required to act unanimously and those permitted to reach

verdicts without unanimity. 406 U.S. at 410-11 (opinion of White,

J.). But when they made this assertion, “little empirical research

had evaluated jury performance.” Ballew, 435 U.S. at 230.

Subsequent research has demonstrated beyond any doubt that

unanimity rules are critical to quality deliberation. See ABA Am.

Jury Project, Principles for Juries and Jury Trials 24-25 (2005)

(Commentary to Principle 4.B, collecting and discussing

research).

Louisiana and Oregon’s nonunanimity laws are a

direct affront to this principle. As discussed above,

Louisiana’s rule originated in a concerted effort to

maintain “white political supremacy” in the wake of

Reconstruction. Louisiana v. United States, 380 U.S.

145, 152 (1965); see also supra at 3-5. The 1898 State

Constitution required only nine of twelve jurors vote

for a conviction. In light of the State’s demographic

composition, requiring only three-quarters of the

jurors to vote to convict typically nullified the voting

power of African-Americans in the jury pool. See State

v. Maxie, No. 13-CR-72522 SBB (11th Jud. Dist., La.

2018), J.A. 41-42. Oregon’s nonunanimity law was

likewise “intended, at least in part, to dampen the

influence of racial, ethnic, and religious minorities on

Oregon juries.” Williams, No. 15-CR-58698 (Or. Cir.

Ct. Dec. 15, 2016), J.A. 43 see also supra at 5-6.

The Louisiana Court of Appeal has acknowledged

the 1898 Convention was laced with an “overtly racist

intent” to exclude “every man with a trace of African

blood in his veins” from suffrage. State v. Hankton,

122 So. 3d 1028, 1037 (La. App. Ct. 2013) (quoting

delegate). But in a case litigated without any

submission of evidence on the subject, the court

claimed that the Convention’s adoption of the

nonunanimity rule had nothing to do with

“disenfranchisement.” Id. at 1037. The State has

similarly claimed there is “no convincing evidence”

that its adoption of the nonunanimity rule was “based

on racism rather than judicial efficiency.” BIO 15.

These assertions are flawed on multiple levels. For

one thing, jury service has always been—in the words

of Blackstone—a form of “suffrage,” enabling the

people to “ensure their control in the judiciary,”

Blakely, 542 U.S. at 306. Curtailing the role of racial

minorities on juries thus strikes at the heart of “our

basic precepts of a democratic society and a

representative government.” Smith v. Texas, 311 U.S.

128, 130 (1940); see Strauder v. West Virginia, 100

U.S. 303, 308 (1879) (jury service entails “the privilege

of participating . . . in the administration of justice”).

In addition, a Louisiana court recently did what

was never done in Hankton: It conducted a full

evidentiary hearing on the origins of the 1898

constitution’s nonunanimity law. The court concluded

the law was “designed to ensure that AfricanAmerican jury service would be meaningless.” State v.

Maxie, No. 13-CR-72522 SBB, at 28; see also Thomas

Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev.

1593, 1612 (2018) (same).

Even if the 1898 law were motivated in part by

efficiency, it would not matter. The right to trial by

jury cannot be impinged in the name of “efficiency.”

Blakely, 542 U.S. at 313. Indeed, the system the right

guarantees “has never been efficient; but it has always

been free.” Apprendi, 530 U.S. at 498 (Scalia, J.,

concurring). And the Framers included this guarantee

in the Bill of Rights because they understood, absent

such enshrinement, “that the jury trial right could be

lost not only by gross denial, but by erosion”—that is,

by subtle efforts to “‘sap and undermine it’” in the

name of “‘convenien[ce].’” Jones v. United States, 526

U.S. 227, 246-48 (1999) (quoting 4 Blackstone,

Commentaries *350).

Louisiana’s nonunanimity rule has continued over

the years to allow de facto suppression of minority

viewpoints. Racial minorities tend to be underrepresented in jury pools—and thus are usually

outnumbered on petit juries. See Kim Taylor-

Thompson, Empty Votes in Jury Deliberations, 113

Harv. L. Rev. 1261, 1262 (2000). These realities dictate

that minority voices can often be discounted or even

ignored when unanimity is not needed. Indeed, an

analysis of the “most comprehensive data assembled

to date on race, jury selection, and jury deliberation in

U.S. courts” found black members of nonunanimous

juries are 250% more likely than their white

counterparts to cast “empty” votes—that is, votes to

acquit that do not contribute to the verdict. Frampton,

supra, at 1598; see also Samuel R. Sommers, On Racial

Diversity and Group Decision Making: Identifying

Multiple Effects of Racial Composition on Jury

Deliberations, 90 J. Personality & Soc. Psychol. 597,

606-07 (2006); Taylor-Thompson, supra, at 1264.

d. Public confidence. Finally, unanimity is

essential to maintaining public faith in the criminal

justice system. Years before the Founding, Hale

observed that the common law’s unanimity

requirement gave guilty verdicts “great weight, value

and credit.” Matthew Hale, History of the Common

Law 293 (4th ed. 1792). That remains true today. Both

“the defendant and society can place special confidence

in a unanimous verdict.” United States v. Lopez, 581

F.2d 1338, 1341 (9th Cir. 1978) (Kennedy, J.).

Consistent with these observations, surveys show

that the public considers unanimous juries more

accurate and fair than the nonunanimous alternative.

Robert J. MacCoun & Tom R. Tyler, The Basis of

Citizens’ Perceptions of the Criminal Jury: Procedural

Fairness, Accuracy, and Efficiency, 12 L. & Hum.

Behav. 333, 337, 338 tbl.1 (1988). Complete agreement

of jurors who represent the whole community lends

crucial legitimacy to the governmental act of depriving

a person of his liberty.

II. The Fourteenth Amendment requires states to

abide by the unanimity requirement.

Eight Justices in Apodaca v. Oregon, 406 U.S. 404

(1972), concluded the Sixth Amendment applies

equally to the states and the federal government.

Johnson v. Louisiana, 406 U.S 356, 395-96 (1972)

(Brennan, J., dissenting in Apodaca); see also

McDonald v. City of Chicago, 561 U.S. 742, 766 n.14

(2010). Yet Justice Powell cast the outcomedeterminative vote in the case. Rejecting prior

precedent and the continuing views of the remainder

of the Court on the meaning of the Fourteenth

Amendment, he thought that the Sixth Amendment

need not apply to the states in the same way it applied

to the federal government.

That fluke of voting should not sway the Court in

this case. This Court’s Fourteenth Amendment

precedent—before and after Apodaca—dictates that

states must abide by the Jury Trial Clause in its

totality, including the requirement of jury unanimity.

And stare decisis does not stand in the way of giving

effect to that reality here.

A. This

Court’s

Fourteenth

Amendment

jurisprudence demands jury unanimity in

state criminal trials.

1. For decades, this Court has addressed questions

like the one here by asking whether the Fourteenth

Amendment’s Due Process Clause “incorporates” the

relevant protection of the Bill of Rights. Timbs v.

Indiana, 139 S. Ct. 682, 686-87 (2019); see also, e.g.,

McDonald, 561 U.S. at 763-65. Applying that test, a

simple syllogism establishes that the Due Process

Clause incorporates the Sixth Amendment’s

unanimity requirement against the states.

First, the Court held long ago that the Jury Trial

Clause applies to the states. Duncan v. Louisiana, 391

U.S. 145, 149 (1968). The Clause is “fundamental to

the American scheme of justice.” Id.

Second, “if a Bill of Rights protection is

incorporated, there is no daylight between the federal

and state conduct it prohibits or requires.” Timbs, 139

S. Ct. at 687. This Court first crystallized this concept

in Malloy v. Hogan, 378 U.S. 1 (1964). Refusing to

exempt the states from a component of the SelfIncrimination Clause, this Court explained that

incorporated provisions of the Bill of Rights “are all to

be enforced against the States under the Fourteenth

Amendment according to the same standards that

protect those personal rights against federal

encroachment.” Id. at 10 (emphasis added). The Court

reiterated this concept in McDonald. It explained that

“it would be ‘incongruous’ to apply different standards”

to an incorporated provision of the Bill of Rights

“depending on whether the claim was asserted in a

state or federal court.” 561 U.S. at 765 (quoting

Malloy, 378 U.S. at 10-11).

Just last Term, this Court reaffirmed this rule

without a dissenting vote. In Timbs, the Court held

that the Eighth Amendment’s Excessive Fines Clause

is “an ‘incorporated’ protection.” 139 S. Ct. at 686. It

then turned to Indiana’s argument that the Clause’s

restrictions against civil in rem forfeitures—

applicable against the federal government under

Austin v. United States, 509 U.S. 602, 621-22 (1993)—

should not apply to the states. See Timbs, 139 S. Ct. at

690. The Court swiftly dispatched the argument: “In

considering whether the Fourteenth Amendment

incorporates a protection contained in the Bill of

Rights, we ask whether the right guaranteed—not

each and every particular application of that right—is

fundamental or deeply rooted.” Id.

This reasoning controls here. Because the Sixth

Amendment’s Jury Trial Clause applies to the states,

Duncan, 391 U.S. at 149-50, and the Clause “requires

a unanimous jury verdict in federal criminal trials,”

McDonald, 561 U.S. at 766 n.14, the Fourteenth

Amendment requires the same in state court.

2. In recent cases dealing with the incorporation

doctrine, Justice Thomas has declined to apply the

doctrine. McDonald, 561 U.S. at 811-12 (Thomas, J.,

concurring in part and concurring in the judgment).

The Due Process Clause, Justice Thomas has asserted,

should not restrict state power beyond requiring

certain procedures. See id. at 811; Timbs, 139 S. Ct. at

691 (Thomas, J., concurring in the judgment).

Even if the reach of the Due Process Clause were

limited in this manner, the outcome here would be the

same. The Due Process Clause’s procedural component

directly regulates state criminal trials. Specifically,

the Fourteenth Amendment forbids states from

dispensing with procedural protections “so rooted in

the traditions and conscience of our people to be

ranked as fundamental.” Medina v. California, 505

U.S. 437, 445 (1992) (citation omitted). For example,

the Due Process Clause directly requires states to

abide by the time-honored beyond-a-reasonable-doubt

rule. See In re Winship, 397 U.S. 358, 364 (1970).

The “primary guide in determining whether the

principle in question is fundamental” is “historical

practice”—that is, “common-law tradition.” Montana

v. Engelhoff, 518 U.S. 37, 43, 46-48 (1996) (plurality

opinion); see also Cooper v. Oklahoma, 517 U.S. 348,

356 (1996). State practice at the time of the Fourteenth

Amendment’s adoption also provides “crucial”

guidance about what due process requires. Burnham

v. Superior Court, 495 U.S. 604, 609-10, 612 (1990)

(plurality opinion). An overwhelming consensus in

modern state policy can also be instructive. See, e.g.,

Cooper, 517 U.S. at 360-62, 361 n.17 (46-state

consensus reinforced due process requirement).

Each of these guideposts supports a freestanding

due process right to unanimity. As explained above,

there is scarcely any procedural protection for criminal

trials more deeply pedigreed than the unanimity

requirement. See supra at 18-27; see also Apprendi v.

New Jersey, 530 U.S. 466, 500 n.1 (2000) (Thomas, J.,

concurring) (Sixth Amendment codified vital

“procedural rights”). Moreover, every state abided by

that rule when the Fourteenth Amendment was

adopted, and every state but one follows that rule

today. See supra at 2-3, 8-9. Jury unanimity, in other

words, is “the inescapable element of due process that

has come down to us from the earliest time.” Hibdon v.

United States, 204 F.2d 834, 838 (6th Cir. 1953).12

3. Given the Due Process Clause’s “straightforward” resolution of the question presented, there is

no reason to seek guidance elsewhere. McDonald, 561

U.S. at 791 (Scalia, J., concurring). But if one were to

ask the Fourteenth Amendment question through the

lens of the Privileges or Immunities Clause, the result

would not change. “‘[T]he ratifying public understood

In Johnson, this Court rejected the argument that due

process requires unanimous verdicts “to give substance to the

reasonable-doubt standard.” 406 U.S. at 359. But the Court did

not consider—and has never otherwise considered—whether due

process includes a unanimity requirement as a matter of

historical practice.

the Privileges or Immunities Clause to protect

constitutionally

enumerated

rights’

against

interference by the States.” Timbs, 139 S. Ct. at 692

(Thomas, J., concurring in the judgment) (quoting

McDonald, 561 U.S. at 837 (Thomas, J., concurring in

part and concurring in the judgment)). The right to

trial by jury is enumerated in the Sixth Amendment

and requires unanimity. See supra at 15-33.

Accordingly, regardless of whether the “appropriate

vehicle for incorporation” is the Due Process Clause or

the Privileges or Immunities Clause, this case is just

like Timbs in that “nothing . . . turns on that question.”

Timbs, 139 S. Ct. at 691 (Gorsuch, J., concurring).13

B. Stare decisis presents no obstacle here.

Approaching the issue from the standpoint of the

incorporation doctrine, Justice Powell concluded in

Apodaca that the Sixth Amendment’s “particular

requirement” of unanimity does not apply to the

The Privileges or Immunities Clause prohibits states from

“mak[ing] or enforc[ing] any law which shall abridge the

privileges or immunities of citizens of the United States.” U.S.

Const. amend. XIV, § 1 (emphasis added); see also McDonald, 561

U.S. at 815 (Thomas, J., concurring in part and concurring in the

judgment) (describing “citizens” as the “rights-bearers” under the

Clause). The only references in the record, including the arrest

report, say that Mr. Ramos is a U.S. citizen. See R. vol. 1, at 154,

181, 236-37. But citizenship is ultimately immaterial here.

Louisiana’s nonunanimous verdict law unquestionably abridges

the privileges and immunities of citizens. And even if the

Privileges or Immunities Clause does not apply directly to

noncitizens, Louisiana has never argued that Article 782(a) of the

Louisiana Code of Criminal Procedure is severable. Nor, in any

event, could the law survive on the basis of its applying solely to

noncitizen defendants. See, e.g., Bernal v. Fainter, 467 U.S. 216,

219-20 (1984) (Equal Protection Clause generally forbids “state

law[s] that discriminate[] on the basis of alienage”).

states. Johnson, 406 U.S. at 373 (concurring in the

judgment in Apodaca). The deeply fractured nature of

Apodaca precludes this conclusion from being entitled

to stare decisis weight. In any event, Justice Powell’s

position in Apodaca should not be followed here.

1. Apodaca’s fractured vote deprives Justice

Powell’s controlling opinion of any

precedential effect.

Where, as here, a past decision consists of a

splintered set of opinions, and a majority of the

Justices disagreed with the rationale of the controlling

vote, considerations of stare decisis need not play any

role in a subsequent case presenting the issue.

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

for example, the Court considered whether the

Commerce Clause allows Congress to abrogate state

sovereign immunity. Years before, in Pennsylvania v.

Union Gas Co., 491 U.S. 1 (1989), the Court had issued

a deeply fractured decision on that issue. Justice

White had “provided the fifth vote for the result,” but

he had written “separately in order to indicate his

disagreement with the plurality’s rationale.” Seminole

Tribe, 517 U.S. at 64 (citing Union Gas, 491 U.S. at 57

(White, J., concurring in the judgment in part and

dissenting in part)). Furthermore, “a majority of the

Court [had] expressly disagreed with the rationale of

the plurality.” Seminole Tribe, 517 U.S. at 66.

In Seminole Tribe, therefore, this Court deemed

Union Gas’s holding of “questionable precedential

value” and declined to follow it. Seminole Tribe, 517

U.S. at 66. Some Justices in Seminole Tribe disagreed

with the Court’s substantive decision. But they found

no fault with the majority’s “decision to reexamine

Union Gas, for the Court in that case produced no

majority for a single rationale.” Id. at 100 (Souter, J.,

joined by Ginsburg & Breyer, JJ., dissenting).

More recently, in Hughes v. United States, 138 S.

Ct. 1765 (2018), the Court addressed how to construe

a federal sentencing statute. In Freeman v. United

States, 564 U.S. 522 (2011), the Court had divided

four-one-four over the issue. “No single interpretation

or rationale [had] commanded a majority,” Hughes,

138 S. Ct. at 1771; Justice Sotomayor provided a fifth

vote for the judgment, but eight of nine Justices

disagreed with the reasoning behind her decisive vote.

See Freeman, 564 U.S. at 534; Hughes, 138 S. Ct. at

1779 (Sotomayor, J., concurring). When a majority in

Hughes agreed on how to construe the statue to

“resolve the sentencing issue on its merits,” the Court

adopted that construction without according stare

decisis weight to its earlier decision. Id. at 1772.

b. The same approach is appropriate here. In

Apodaca, Justice Powell’s single vote decided the case.

Yet no other Justice agreed with Justice Powell’s twotrack approach to incorporation. See Johnson, 406 U.S.

at 395 (Brennan, J., dissenting in Apodaca). Because

the vote in Apodaca was splintered—and because the

Court’s settled incorporation doctrine clearly

mandates that the unanimity requirement apply

equally in state criminal trials—this Court should

resolve the issue “on its merits,” Hughes, 138 S. Ct. at

1772, without according any weight to Apodaca.

2. Even if stare decisis has some purchase

here, Apodaca’s incorporation holding

cannot stand.

a. Even if Justice Powell’s opinion in Apodaca

were entitled to some stare decisis weight, it would not

matter. His “partial incorporation” theory flouted

then-existing precedent and has since been squarely

repudiated.

i. Stare decisis does not require adherence to

precedent that “colli[ded] with a prior doctrine more

embracing in its scope, intrinsically sounder, and

verified by experience.” Helvering v. Hallock, 309 U.S.

106, 119 (1940). In Gideon v. Wainwright, 372 U.S. 335

(1963), for example, this Court noted that several

decisions before Betts v. Brady, 316 U.S. 455 (1942),

had treated the right to counsel as a “fundamental”

right. Gideon, 372 U.S. at 342-45 (citing cases).

Because Betts’s holding to the contrary “made an

abrupt break with [those] well-considered precedents,”

and the reasoning in those cases was “sounder” than

that in Betts, the Court overruled Betts. Gideon, 372

U.S. at 343-45.

Justice Powell’s concurrence was an equally

abrupt break from carefully reasoned precedent. In a

series of cases before Apodaca, the Court had

repeatedly considered and 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.’” Malloy, 378 U.S. at

10-11 (quoting Ohio ex rel. Eaton v. Price, 364 U.S.

263, 275 (1960)); see also Pointer v. Texas, 380 U.S.

400, 406 (1965) (incorporating the Confrontation

Clause against the states “according to the same

standards that protect those personal rights against

federal encroachment” (quoting Malloy, 378 U.S. at

10)); Duncan, 391 U.S. at 149 (same regarding Jury

Trial Clause); Benton v. Maryland, 395 U.S 784, 79495 (1969) (same regarding Double Jeopardy Clause).

Justice Powell declined in Apodaca to follow this

established consensus. Justice Powell himself

conceded that it was “perhaps late in the day” to

express the view that a provision of the Bill of Rights

need not apply to the States “with total uniformity.”

Johnson, 406 U.S. at 375 & n.15 (concurring in the

judgment in Apodaca). That was an understatement.

Justice Powell’s opinion flew in the face of existing

precedent that he made no effort to distinguish. See

id.; id. at 384-87 (Douglas, J., dissenting in Apodaca);

id. at 395-96 (Brennan, J., dissenting in Apodaca).

ii. This Court also has consistently abrogated prior

decision where “later law has rendered the decision[s]

irreconcilable with competing legal doctrines or

policies.” Patterson v. McClean Credit Union, 491 U.S.

164, 173 (1989) (collecting cases). Indeed, when prior

holdings “conflict with other, more recent authority,

the Court ‘has never felt constrained to follow

precedent.’” Vasquez v. Hillery, 474 U.S. 254, 269

(1986) (quoting Smith v. Allwright, 321 U.S. 649, 665

(1944)).

For example, this Court has had little difficulty

overruling prior decisions that conflict with the

Apprendi doctrine, explaining that those decisions

cannot “survive the reasoning” of Apprendi. Ring v.

Arizona, 536 U.S. 584, 603, 609 (2002) (overruling

Walton v. Arizona, 497 U.S. 639 (1990)); see also Hurst

v. Florida, 136 S. Ct. 616, 623 (2016) (overruling in

part Spaziano v. Florida, 468 U.S. 447 (1984) and

Hildwin v. Florida, 490 U.S. 638 (1989)). In United

States v. Gaudin, 515 U.S. 506 (1995), the Court

likewise overruled a prior case because intervening

law had effectively “repudiated” it, leaving it “an

unfortunate anomaly.” Id. at 520-21; see also Agostini

v. Felton, 521 U.S. 203, 235-36 (1997) (similar);

Alabama v. Smith, 490 U.S. 794, 803 (1989) (similar).14

This Court has even more clearly disavowed

Justice Powell’s partial incorporation approach. In

McDonald, the Court stressed that the holding in

Apodaca “was the result of an unusual division among

the Justices, not an endorsement of the two-track

approach to incorporation.” 561 U.S. at 766 n.14. And

in Timbs, the Court locked down the rule that a Bill of

Rights protection, once incorporated, applies

identically in both federal and state court. 139 S. Ct.

at 689-90. In light of these pronouncements,

overruling Apodaca would be nothing more than

“recogniz[ing] the inevitable,” Benton, 395 U.S. at 795.

b. Even beyond the direct clash between Justice

Powell’s opinion and other case law, further stare

decisis considerations reinforce the propriety of

overruling Apodaca.

i. There is perhaps no area of law in which stare

decisis holds less force than with respect to precedent

refusing to incorporate a Bill of Rights guarantee

against the states. See McDonald, 561 U.S. at 766

(collecting cases). In case after case, this Court has

Earlier this year, this Court overruled Nevada v. Hall, 440

U.S. 410 (1979), explaining that intervening developments had

rendered it “an outlier in [the Court’s] sovereign immunity

jurisprudence.” Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499

(2019). The dissent disagreed with this characterization of Hall

but did not contest that it is appropriate to overrule a decision

when it is “a relic of an abandoned doctrine.” Id. at 1505 (Breyer,

J., dissenting); see also Herrera v. Wyoming, No. 17-532, slip op.

at 10-11 (May 20, 2019) (repudiating an earlier case because its

reasoning had been “upended”).

held in this setting that stare decisis must give way to

the need to apply the Constitution’s vital safeguards of

individual liberty equally to federal and state

governments. In doing so, the Court has stressed the

propriety of “re-examin[ing] past decisions according

the Fourteenth Amendment a less central role in the

preservation of basic liberties” than the Amendment

envisions, Malloy, 378 U.S. at 5; see also id. at 6

(overruling Adamson v. California, 332 U.S. 46 (1947)

and Twining v. New Jersey, 211 U.S. 78 (1908)).15

Even more directly on point, the Court has

“abandoned” decisions allowing states to disregard

particular components of incorporated rights.

McDonald, 561 U.S. at 765. Condoning such a twotrack approach to incorporation, the Court has

explained, would render the Bill of Rights an “empty

promise.” Mapp, 367 U.S. at 660. To determine that a

guarantee is fundamental—yet deny the people the

benefit of its full protection—“is to grant the right but

in reality to withhold its privilege and enjoyment.” Id.

at 656. Where the Bill of Rights demands a particular

procedure for criminal trials, states should not be

allowed to take “shortcut[s] to conviction.” Id. at 660.

This reasoning governs here. When the Bill of

Rights was written, the Framers described the jury

trial right as “the very palladium of free government.”

The Federalist No. 83, at 498 (Alexander Hamilton)

For other examples, see, e.g., Pointer, 380 U.S. at 406

(overruling in part West v. Louisiana, 194 U.S. 258 (1904));

Gideon v. Wainwright, 372 at 339 (overruling Betts v. Brady, 316

U.S. 455 (1942)); Mapp v. Ohio, 367 U.S. 643, 654-55 (1961)

(overruling in part Wolf v. Colorado, 338 U.S. 25 (1949)); Benton,

395 U.S. at 794 (overruling Palko v. Connecticut, 302 U.S. 319

(1937)).

(Clinton Rossiter ed., 1961) (expressing his views and

those of others at the Constitutional Convention); see

also 3 William Blackstone, Commentaries on the Laws

of England *379 (1769) (characterizing right to jury

trial as “the glory of English law”). And unanimity

was—and still is—considered fundamental to

realizing the protections of the jury trial right. The

federal unanimity requirement recognizes as much. It

would be “incongruous,” Malloy, 378 U.S. at 11, to

continue allowing the unanimity right, essential at the

federal level, to be denied in state court.

ii. The State nevertheless argues it has a reliance

interest in convictions obtained from divided juries.

BIO 4-5. Not so. Only “legitimate reliance interest[s]”

merit consideration under stare decisis. South Dakota

v. Wayfair, Inc., 138 S. Ct. 2080, 2086 (2018) (quoting

United States v. Ross, 456 U.S. 798, 824 (1982)).

Convictions obtained under a racially tinged law that

broke from centuries of tradition—and that crimped

one of our Nation’s most cherished liberties—do not

deserve such deference. See Pena-Rodriguez v.

Colorado, 137 S. Ct. 855, 867 (2017) (emphasizing the

special importance of eradicating “race discrimination

in the jury system”); McDonald, 561 U.S. at 775-76

(incorporating right where “necessary to provide full

protection for the rights of blacks”).

What is more, the Court put states on notice years

ago that it viewed Apodaca as an anachronistic result

due to an “unusual division among the Justices.”

McDonald, 561 U.S. at 766 n.14. In McDonald, the

Court refused even to try to reconcile Apodaca with its

broader incorporation jurisprudence or holding in that

case. Id. And before that, the Court applied the Jury

Trial Clause to the states in a series of decisions

explaining that criminal punishment should not be

imposed absent “unanimous” agreement of the jury.

Apprendi, 530 U.S. at 477 (citation omitted).

At any rate, only one state continues to seek

nonunanimous jury verdicts for crimes committed

after 2018. Forty-nine states and the federal court

system require unanimity to obtain a conviction in

trials for such nonpetty offenses. And the need for a

certain number of retrials in a limited number of

states has not prevented the Court in the past from

overruling cases that infringed fundamental rights.

See, e.g., Alleyne v. United States, 570 U.S. 99, 103,

115 n.4 (2015) (overruling precedent to require juries

to find facts exposing defendants to mandatory

minimum sentences despite numerous state laws to

the contrary); Ring, 536 U.S. at 608 & n.5 (overruling

precedent to require juries to find aggravating facts

exposing defendants to the death penalty, even though

nine states did not so require); Gideon, 372 U.S. at 345

(overruling precedent to require appointed counsel in

criminal cases); Br. for State Gov’ts as Amici Curiae

Supporting Pet’r at 2, Gideon v. Wainwright, 372 U.S.

335 (1963) (No. 155) (noting that fifteen states did not

require appointed counsel at the time).

Interests relating to settled expectations cut the

other way here too. Full incorporation is an

established principle on which the Court itself has

relied for several decades. In case after case, this Court

has identified new aspects of incorporated rights

without separately inquiring whether those aspects

apply to the states. Such a result has been thought

implicit in the primary holding. Timbs, 139 S. Ct. at

690-91; see also, e.g., Pena-Rodriguez v. Colorado, 137

S. Ct. 855 (2017); Padilla v. Kentucky, 559 U.S. 356

(2010); Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009); Apprendi v. New Jersey, 530 U.S. 466 (2000).

Tolerating the notion that a feature of an

incorporated right need not be applied against the

states could unsettle this Court’s jurisprudence much

more than overruling Apodaca. It is “far too late to

exhume” the notion that the Fourteenth Amendment

requires the states to respect only a “watered-down,

subjective version of the individual guarantees of the

Bill of Rights.” McDonald, 561 U.S. at 788 (plurality

opinion) (quoting Malloy, 378 U.S. at 10-11). This

Court should overrule Apodaca’s idiosyncratic and

incorrect holding and apply the Sixth Amendment’s

unanimity guarantee to the states.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment below.

Respectfully submitted,