Amicus Curiae Brief — Evangelisto Ramos, Petitioner v. Louisiana

No. 18-5924

IN THE

Supreme Court of the United States

EVANGELISTO RAMOS,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

LOUISIANA COURT OF APPEAL, FOURTH CIRCUIT

BRIEF FOR AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL R.Q. WOLFSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave. NW

Washington DC 20006

ERIC L. HAWKINS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org

QUESTION PRESENTED

Whether the Fourteenth Amendment fully incorporates the Sixth Amendment’s guarantee of a unanimous verdict.

(i)

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .......................................... iii

INTEREST OF AMICUS CURIAE .............................. 1

SUMMARY OF ARGUMENT........................................... 4

ARGUMENT........................................................................ 6

I.

THE SIXTH AMENDMENT’S GUARANTEE OF

JURY UNANIMITY IS INCORPORATED IN

THE FOURTEENTH AMENDMENT ............................... 8

A. The Sixth Amendment Guarantees

Jury Unanimity ..................................................... 8

B. The Sixth Amendment Should Be

Wholly

Incorporated

In

The

Fourteenth Amendment .................................... 10

C. Stare Decisis Is Insufficient Reason To

Preserve Apodaca............................................... 13

II. A UNANIMITY REQUIREMENT PROMOTES

THE RELIABILITY OF JURY VERDICTS AND

PUBLIC CONFIDENCE IN THE CRIMINAL

JUSTICE SYSTEM ......................................................... 16

A. A Unanimity Rule Promotes Better

Decision Making By Juries ................................ 16

B. The Non-Unanimity Rule In Louisiana

And Oregon Has Roots In Racial

Discrimination ..................................................... 23

CONCLUSION ................................................................. 26

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Agostini v. Felton, 521 U.S. 203 (1997) .......................... 14

American Publishing Co. v. Fisher, 166 U.S.

464 (1897) ....................................................................... 9

Andres v. United States, 333 U.S. 740 (1948) .................. 9

Apodaca v. Oregon, 406 U.S. 404 (1972)................... 4, 6, 8

Apprendi v. New Jersey, 530 U.S. 466 (2000).................. 9

Ballew v. Georgia, 435 U.S. 223 (1978) ........................... 17

Batson v. Kentucky, 476 U.S. 79 (1986) ......................... 23

Carter v. Jury Commission, 396 U.S. 320

(1970) ............................................................................ 22

Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 11

Gideon v. Wainwright, 372 U.S. 335 (1963) ................... 11

Hunter v. Underwood, 471 U.S. 222 (1985) ................... 23

In re Oliver, 333 U.S. 257 (1948)...................................... 11

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

Kimble v. Marvel Entertainment, LLC, 135 S.

Ct. 2401 (2015) ............................................................. 14

Klopfer v. North Carolina, 386 U.S. 213 (1967) ............ 12

Maxwell v. Dow, 176 U.S. 581 (1900) ................................ 9

McDonald v. City of Chicago, 561 U.S. 742

(2010) ........................................................................ 7, 12

Michigan v. Bay Mills Indian Community, 572

U.S. 782 (2014) ............................................................ 14

Patton v. United States, 281 U.S. 276 (1930) ............. 9, 13

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Payne v. Tennessee, 501 U.S. 808 (1991).................. 14, 15

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

(2017) ............................................................................ 22

Pointer v. Texas, 380 U.S. 400 (1965) ............................. 12

Powers v. Ohio, 499 U.S. 400 (1991) ................................ 23

Richardson v. United States, 526 U.S. 813

(1999) .......................................................................... 7, 9

Rompilla v. Beard, 545 U.S. 374 (2005) ........................... 3

Schriro v. Summerlin, 542 U.S. 348 (2004) ................... 15

Springville v. Thomas, 166 U.S. 707 (1897) ..................... 9

Taylor v. Louisiana, 419 U.S. 522 (1975)....................... 22

Thompson v. Utah, 170 U.S. 343 (1898) ........................... 9

Timbs v. Indiana, 139 S. Ct. 682 (2019) ......... 7, 11, 12, 14

United States v. Lopez, 581 F.2d 1338 (9th Cir.

1978) ............................................................................. 21

Washington v. Texas, 388 U.S. 14 (1967) ....................... 12

Williams v. Florida, 399 U.S. 78 (1970) ......................... 10

DOCKETED CASES

Lee v. Louisiana, No. 07-1523 (U.S.) ................................ 3

State v. Williams, No. 15CR58698 (Or. Cir. Ct.

Multnomah Cty.)......................................................... 25

RULES

Fed. R. Crim. P. 31 .............................................................. 9

v

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

ABA, Criminal Justice Standards (1978) ....................... 2

ABA, Principles for Juries and Jury Trials

(2005) ............................................................ 3, 17, 18, 21

ABA, Standards for Criminal Justice, Trial by

Jury (Approved Draft 1968) ....................................... 2

ABA, Standards Relating to Trial Courts

(1976) .............................................................................. 2

ABA Resolution 100B, Report (May 1, 2018) ...... 3, 21, 24

Adelson, Jeff, et al., How an Abnormal

Louisiana Law Deprives, Discriminates

and Drives Incarceration: Tilting the

Scales, The Advocate (Apr. 1, 2018),

https://www.theadvocate.com/baton_rouge/

news/courts/article_16fd0ece-32b1-11e8-87

70-33eca2a325de.html ................................................ 25

Aiello, Thomas, Jim Crow’s Last Stand:

Nonunanimous Criminal Jury Verdicts in

Louisiana (2015) ......................................................... 24

Allen-Bell, Angela A., How the Narrative

About

Louisiana’s

Non-Unanimous

Criminal Jury System Became a Person of

Interest in the Case Against Justice in the

Deep South, 67 Mercer L. Rev. 585 (2016).............. 24

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Buckhout, Robert, et al., Jury Verdicts: Comparison of 6- vs. 12-Person Juries and

Unanimous vs. Majority Decision Rule in

a Murder Trial, 10 Bull. Psychonomic Soc’y

175 (1977) ..................................................................... 17

Burger, Warren E., Introduction: The ABA

Standards for Criminal Justice, 12 Am.

Crim. L. Rev. 251 (1974) .............................................. 3

Davis, James H., et al., The Decision Processes

of 6- and 12-Person Mock Juries Assigned

Unanimous and Two-Thirds Majority

Rules, 32 J. Personality & Soc. Psychol. 1

(1975) .................................................................... 188888

Devine, Dennis J., et al., Jury Decision Making: 45 Years of Empirical Research on

Deliberating Groups, 7 Psych. Pub. Pol’y &

L. 622 (2001) ................................................................ 18

Diamond, Shari Seidman, et al., Revisiting the

Unanimity Requirement: The Behavior of

the Non-Unanimous Civil Jury, 100 Nw.

U. L. Rev. 201 (2006)............................................ 21, 22

Frampton, Thomas Ward, The Jim Crow Jury,

71 Vand. L. Rev. 1593 (2018) .................................... 25

Hastie, Reid, et al., Inside the Jury (1983)..... 17, 18, 19, 20

Kalven, Harry & Hans Zeisel, The American

Jury (1966) .................................................................. 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Kaplan, Aliza B. & 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 (2016) ................... 25

Kerr, Norbert, et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition

and Assigned Decision Rule on the Judgment of Mock Juries, 34 J. Personality &

Soc. Psychol. 282 (1976) ....................................... 19, 21

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

of Citizens’ Perception of the Criminal

Jury: Procedural Fairness, Accuracy, and

Efficiency, 12 Law & Hum. Behav. 333

(1988) ............................................................................ 21

Nemeth, Charlan, Interactions Between Jurors

as a Function of Majority vs. Unanimity

Decision Rules, 7 J. Applied Soc. Psych. 38

(1977) ................................................................ 18, 19, 20

Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana (1898) ................................................................. 24

Saks, Michael J., Jury Verdicts: The Role of

Group Size and Social Decision Rule

(1977) ............................................................................ 18

Saks, Michael J., What Do Jury Experiments

Tell Us About How Juries (Should) Make

Decisions?, 6 S. Cal. Interdisc. L.J. 1

(1997). ........................................................................... 19

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Taylor-Thompson, Kim, Empty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1262

(2000) ............................................................................ 19

IN THE

Supreme Court of the United States

No. 18-5924

EVANGELISTO RAMOS,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

LOUISIANA COURT OF APPEALS

FOURTH CIRCUIT

BRIEF FOR AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF AMICUS CURIAE1

The American Bar Association (“ABA”) is one of

the largest voluntary professional membership organizations in the United States. The ABA’s more than

400,000 members include attorneys in private firms,

corporations, nonprofit organizations, and government

agencies, including prosecutors and defense counsel, as

1

No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amicus curiae, its members, and its counsel, made a monetary contribution intended to

fund the preparation or submission of this brief. All parties have

consented to the filing of this brief.

2

well as judges, legislators, law professors, law students,

and non-lawyers in related fields.2

The ABA has long recognized that a requirement of

jury unanimity in criminal cases is fundamental to the

right to jury trial secured by the Sixth Amendment and

is essential to maintaining public confidence in the

criminal justice system.3 In 1976, the ABA’s Commission on Standards of Judicial Administration recommended, and the ABA adopted, Standard 2.10 of the

ABA Standards Relating to Trial Courts, which stated:

“The verdict of the jury [in criminal cases] should be

unanimous.” The ABA then also revised its Criminal

Justice Standards, which reflect extensive study by a

broad array of participants in the criminal justice system, to require unanimous verdicts. ABA, Criminal

Justice Standard 15-1.1(c) (1978) (“The verdict of the

jury should be unanimous.”); see id. at 126 (explaining

that a unanimity requirement “enhances the reliability

of the jury’s verdict” and “require[s] the majority both

2

Neither this brief nor the decision to file it should be interpreted to reflect the views of any judicial member of the American

Bar Association. No member of the Judicial Division Council participated in the adoption of or endorsement of the positions in this

brief, nor was it circulated to any member of the Judicial Division

Council prior to filing.

3

Before 1976, the ABA’s Criminal Justice Standards permitted non-unanimous jury verdicts. See ABA, Standards for Criminal Justice, Trial by Jury, Standard 1.1 (Approved Draft 1968);

Johnson v. Louisiana, 406 U.S. 366, 377 & n.12 (1972) (Powell, J.).

Since that time, ABA has comprehensively revisited the question

and has surveyed extensive social science and historical research,

leading it to conclude that non-unanimous verdicts are inconsistent with a fundamentally fair criminal justice system.

3

to listen to and respect the minority opinions during the

deliberative process”).4

Further study by ABA has solidified its view that

jury verdicts in criminal cases should be unanimous. In

its 2005 Principles for Juries and Jury Trials, ABA

discussed empirical studies concluding that a nonunanimous decision process may reduce the reliability

of jury determinations, silence minority viewpoints,

and erode confidence in the criminal justice system.

ABA, Principles for Juries and Jury Trials, Principle

4.B Commentary 24-24 (2005).5 And in 2018, the ABA

House of Delegates, the policymaking body of the Association, adopted Resolution 100B, which “urges Louisiana and Oregon to require unanimous juries to determine guilt in felony criminal cases and reject the use

of non-unanimous juries where currently allowed in felony cases.” As discussed below, that resolution was accompanied by a further study examining social science

research as well as historical research indicating that,

in both Louisiana and Oregon, the practice of nonunanimous juries was adopted in part for racially discriminatory reasons.

4

This Court “long [has] referred to the[] ABA Standards as

guides to determining what is reasonable.” Rompilla v. Beard,

545 U.S. 374, 387 (2005); see Burger, Introduction: The ABA

Standards for Criminal Justice, 12 Am. Crim. L. Rev. 251, 252

(1974) (hailing the Standards as “a balanced, practical work intended to walk the fine line between the protection of society and

the protection of the constitutional rights of the accused individual”).

5

In 2008, ABA filed an amicus brief urging this Court to hold

that unanimous jury verdicts are constitutionally required in both

state and federal courts. Br. for Amicus Curiae American Bar

Ass’n, Lee v. Louisiana, No. 07-1523 (U.S. filed July 7, 2008).

4

For the reasons given below, ABA urges the Court

to hold that the Fourteenth Amendment fully incorporates the Sixth Amendment’s requirement of jury unanimity and to overrule Apodaca v. Oregon, 406 U.S. 404

(1972).

SUMMARY OF ARGUMENT

I. This Court should hold that the Sixth Amendment, of its own force and as incorporated against the

States through the Due Process Clause of the Fourteenth Amendment, requires that jury verdicts in felony criminal cases be unanimous. Although a divided

Court allowed a non-unanimous verdict to stand against

a Sixth Amendment challenge in Apodaca v. Oregon,

406 U.S. 404 (1972), no opinion commanded a majority

of the Court, and the plurality and concurring opinions

that supported the judgment relied on differing, even

contradictory reasoning—and in each case on rationales

inconsistent with both prior and subsequent decisions

of this Court. Under these exceptional circumstances,

and where individual constitutional rights necessary to

secure a fundamentally fair trial are at stake, the Court

should overrule Apodaca.

Four Justices in Apodaca would have held that the

Sixth Amendment by itself does not require unanimous

juries. But that reasoning was rejected by five other

Justices, deviated from prior decisions, and has been

rejected in other opinions stating without qualification

that the Sixth Amendment requires unanimous jury

verdicts. One Justice would have held that, even

though the Trial by Jury Clause of the Sixth Amendment does require unanimous verdicts, the Fourteenth

Amendment does not incorporate that particular requirement. But that partial approach to incorporation

has never been adopted by the Court and has been expressly repudiated in subsequent decisions. Thus, giv-

5

en its weak underpinnings and inconsistency with both

earlier and later precedents, Apodaca has little claim to

the force of stare decisis.

II. The precedential effect of Apodaca is further

undermined by two factors that the Court did not consider in that decision: scholarship demonstrating that

unanimity is important to the functioning of the jury,

and historical evidence showing that in both Louisiana

and Oregon, non-unanimous verdicts have a racially

tainted origin. First, the Apodaca Court had little empirical evidence about non-unanimous juries, but subsequent research supports a conclusion that juries operating under a unanimity rule deliberate more carefully and

thoughtfully, and with greater respect for all jurors’

opinions, including those representing minority and dissenting viewpoints. These qualities are essential if the

jury is to play its fundamental constitutional role as the

conscience of the community, and in particular the representative of a fair cross-section of a diverse community.

Second, the ability of a majority-rule jury to ignore

minority viewpoints is particularly troubling given historical evidence that, in both Louisiana and Oregon, the

non-unanimous verdict was authorized as a vehicle of

racial discrimination. In Louisiana, non-unanimous

verdicts were written into its constitution at the 1898

Convention, which adopted numerous measures to reinforce white supremacy in the State. And in Oregon,

non-unanimous verdicts were authorized after a sweep

of anti-Semitism and other discriminatory attitudes

across the State following the partial acquittal of a Jewish defendant. The tainted origins of these measures

provide further reason the Court should not allow them

to stand, and should instead hold that the constitutional

guarantee of unanimous jury verdicts in felony criminal

cases applies equally across the Nation.

6

ARGUMENT

In Apodaca v. Oregon, 406 U.S. 404 (1972), five Justices concluded that the Trial by Jury Clause of the

Sixth Amendment, as incorporated against the States

through the Due Process Clause of the Fourteenth

Amendment, did not require unanimous jury verdicts

in criminal cases—but those five Justices disagreed

with and indeed contradicted each other on the rationale for that conclusion.6 Four Justices concluded

that the Sixth Amendment does not require unanimous

verdicts in criminal cases. Id. at 410-411 (White, J.,

plurality opinion). Justice Powell, concurring only in

the judgment, concluded that the Sixth Amendment

does require jury unanimity in federal court—and thus

disagreed with the plurality, which believed that the

Sixth Amendment did not require unanimous verdicts

at all. Johnson v. Louisiana, 406 U.S. 356, 369-371

(1972) (Powell, J.). But Justice Powell also concluded

that that particular aspect of the Sixth Amendment’s

jury trial guarantee was not incorporated against the

States by the Fourteenth Amendment. Id. at 371-380.7

6

Apodaca was decided in tandem with Johnson v. Louisiana,

406 U.S. 356 (1972), which held that the Due Process Clause of its

own force does not require jury unanimity. Several of the separate opinions applicable to Apodaca appear in Johnson.

7

Four dissenting Justices concluded that the Sixth Amendment applies equally in federal and state courts, and requires jury

unanimity in both. Johnson, 406 U.S. at 380-394 (Douglas, J.);

Apodaca, 406 U.S. at 414-15 (Stewart, J.). Ironically, then, eight

Justices concluded that the Sixth Amendment has the same scope

in federal and state courts, and five Justices concluded that the

Sixth Amendment requires unanimous jury verdicts—yet a majority of the Justices nonetheless concluded that the Sixth Amendment does not require unanimous jury verdicts in state courts.

7

The outcome in Apodaca was not only unsatisfying;

it proved to be unstable. Since that decision, the Court

has reaffirmed what was clear from its previous decisions—that the Sixth Amendment does require unanimous jury verdicts, at least in federal court. See Richardson v. United States, 526 U.S. 813 (1999). The Court

has thus rejected the rationale of the Apodaca plurality. Separately, the Court has also repudiated the approach to incorporation reflected in Justice Powell’s

concurrence, and has reaffirmed that, if a right secured

by the Bill of Rights is incorporated in the Fourteenth

Amendment, it applies in equal measure to the federal

and state governments. See Timbs v. Indiana, 139 S.

Ct. 682 (2019); McDonald v. City of Chi., 561 U.S. 742,

766 n.14 (2010). Neither of the lead opinions in Apodaca thus reflects the Court’s current jurisprudence

(and both were inconsistent with prior decisions as

well).

Given the incongruity in Apodaca, it is appropriate

for the Court to reconsider that decision. The Court,

quite rightly, does not often overrule its precedents,

but the status of Apodaca as a precedent, other than

the bare outcome, is doubtful. In addition, extending

well established Sixth Amendment case law to the

states would cause little disruption; as of now, every

State other than Louisiana and Oregon requires unanimous jury verdicts in criminal cases.

Apodaca also did not have the benefit of significant

information that undermines the reasoning of the lead

opinions. First, the plurality believed that a requirement of unanimity would not “materially contribute to

the exercise of [the jury’s] commonsense judgment,”

406 U.S. at 410, but cited no empirical research to support that conclusion. Similarly, Justice Powell suggested that a non-unanimous rule would not result in “the

8

exclusion of minority group viewpoints” in the jury

room, 406 U.S. at 378, but also cited nothing in support.

Since Apodaca, research in jury and other small-group

dynamics has shown that a unanimity rule is important

to ensure that the jury debates thoroughly and respects minority viewpoints. In addition, research has

revealed that the non-unanimous rule was likely adopted in Louisiana and Oregon in part for racially discriminatory reasons—a grave defect that threatens to undermine public confidence in the criminal justice system. All of these reasons warrant the Court reconsidering Apodaca and holding that the Sixth Amendment,

of its own force and as applied through the Fourteenth

Amendment, requires unanimous jury verdicts in criminal cases.

I.

THE SIXTH AMENDMENT’S GUARANTEE OF JURY UNAIS INCORPORATED IN THE FOURTEENTH

AMENDMENT

NIMITY

A. The Sixth Amendment Guarantees Jury Unanimity

As explained above, the four plurality Justices in

Apodaca would have held that the Sixth Amendment

permits non-unanimous verdicts—but that position was

expressly rejected by five other Justices, including Justice Powell, who provided the controlling vote. See

Johnson, 406 U.S. at 366 (Powell, J., concurring) (“In an

unbroken line of cases reaching back into the late

1800’s, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of the federal jury trial.”). Louisiana has urged the Court to conclude that the Sixth

Amendment does not require a unanimous jury. See

Opp. 6-12. But that argument has been rejected by the

Court both before and after Apodaca.

9

Nearly 90 years ago, the Court stated it was “not

open to question” that the Sixth Amendment mandates

unanimous criminal jury verdicts. Patton v. United

States, 281 U.S. 276, 288 (1930). Patton traced this

Court’s jurisprudence to 1897 to confirm that jury unanimity is “embedded” in the Sixth Amendment, “beyond the authority of the legislative department to destroy or abridge.” Id. at 289-290 (citing American

Publ’g Co. v. Fisher, 166 U.S. 464 (1897); Springville v.

Thomas, 166 U.S. 707 (1897); Maxwell v. Dow, 176 U.S.

581 (1900)); see also Thompson v. Utah, 170 U.S. 343,

353 (1898) (“[The] wise men who framed the Constitution of the United States and the people who approved

it were of opinion that life and liberty, when involved in

criminal prosecutions, would not be adequately secured

except through the unanimous verdict of twelve jurors.”) And the requirement of unanimity dates to long

before the nation’s founding. See Johnson, 406 U.S. at

382 n.2 (Douglas, J., dissenting) (tracing requirement of

unanimity to 1367).

The Court has reaffirmed the requirement of unanimity several times. In Andres v. United States, 333

U.S. 740, 748 (1948), for example, the Court stated

without qualification: “Unanimity in jury verdicts is

required where the Sixth and Seventh Amendments

apply.” And the Court cited with approval Justice

Powell’s Apodaca/Johnson concurrence in Richardson,

526 U.S. at 817, where it stated: “[A] jury in a federal

criminal case cannot convict unless it unanimously finds

the Government has proved each element.” See also

Apprendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring) (“[The defendant’s] guilt of the crime

… will be determined beyond reasonable doubt by the

unanimous vote of 12 of his fellow citizens.”); Fed. R.

Crim. P. 31(a).

10

Given this unbroken case law, it must be regarded

as settled that the Sixth Amendment requires unanimous jury verdicts. Although the Apodaca plurality

suggested otherwise, that position has never commanded a majority of the Court. Respondent seeks to

draw an analogy (Opp. 7-8, 11-12) to Williams v. Florida, 399 U.S. 78 (1970), but Williams does not permit

split criminal verdicts. Rather, at issue in Williams

was the constitutional propriety of a six-person jury in

a non-capital criminal case. This Court determined that

Florida’s six-person jury did not offend the Sixth

Amendment, reasoning that “the fact that the jury at

common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the

jury system.” 399 U.S. at 102. But the Court has never

suggested that the unanimity requirement was a historical accident; quite the contrary, it has always

viewed unanimity as fundamental to the very concept

of a jury. And the Court in Williams “intimate[d] no

view whether or not the requirement of unanimity is an

indispensable element of the Sixth Amendment jury

trial.” Id. at 100 n.46. Thus, whatever may be said of

Williams, it does not speak to the non-unanimous verdict here under review.

B. The Sixth Amendment Should Be Wholly Incorporated In The Fourteenth Amendment

Since this Court has already held that the Sixth

Amendment’s Trial by Jury Clause requires a unanimous verdict, the next question is whether the Amendment’s guarantee of jury trials—including its unanimity

requirement—is wholly incorporated in the Fourteenth

Amendment. The Court’s precedents on the Sixth

Amendment and on incorporation make clear that unanimity is required in state and federal courts alike.

11

The test for incorporation is whether the right in

question is “fundamental to our scheme of ordered liberty, or deeply rooted in this Nation’s history and tradition.” Timbs, 139 S. Ct. at 687 (internal quotation

marks and citations omitted). The Court has repeatedly held that the Sixth Amendment’s protections meet

this standard.

The general constitutional right to trial by jury was

held to be incorporated in Duncan v. Louisiana, 391

U.S. 145 (1968). There, the Court, surveying historical

practice and its own precedents, held unequivocally

that “trial by jury in criminal cases is fundamental to

the American system of justice,” id. at 149, and “reflect[s] a profound judgment about the way in which

law should be enforced and justice administered,” id. at

155. “Our conclusion,” the Court explained, “is that in

the American States, as in the federal judicial system, a

general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of

justice and for assuring that fair trials are provided for

all defendants.” Id. at 157-158.

The jury trial right thus stands on equal footing with

other aspects of the Sixth Amendment that are fully incorporated in the Fourteenth Amendment. For example, the Sixth Amendment’s guarantee that trials be

public was found embedded in the Fourteenth Amendment’s Due Process Clause. See In re Oliver, 333 U.S.

257, 266-273 (1948) (tracing “distrust” for “secret” trials

to “English common law heritage” and to “notorious use

of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the

French monarchy’s abuse of the letter de cachet.”).

Likewise, “the assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to

insure fundamental human rights and liberty.” Gideon

12

v. Wainwright, 372 U.S. 335, 343 (1963) (internal quotation marks omitted). The “Sixth Amendment’s right of

an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the

States by the Fourteenth Amendment,” Pointer v. Texas, 380 U.S. 400, 403 (1965), as is its guarantee of compulsory process, Washington v. Texas, 388 U.S. 14, 18-19

(1967), and a speedy trial, Klopfer v. North Carolina, 386

U.S. 213, 223-226 (1967).

Because the Sixth Amendment’s Trial by Jury

Clause requires jury unanimity, and because that

Clause has been incorporated into the Fourteenth

Amendment, the only way to conclude that the States

are not bound by the unanimity requirement would be

to hold that one particular aspect of the Sixth Amendment jury trial right has not been incorporated—

essentially, the rationale for Justice Powell’s separate

opinion in Apodaca. But this Court has rejected that

approach to incorporation. As the Court explained in

Timbs, “[i]ncorporated Bill of Rights guarantees are

‘enforced against the States under the Fourteenth

Amendment according to the same standards that protect [federal] rights against federal encroachment.’

Thus, if a Bill of Rights protection is incorporated,

there is no daylight between the federal and state conduct it … requires.” 139 S. Ct. at 687 (quoting McDonald, 561 U.S. at 765).8

Moreover, jury unanimity bears every hallmark of

“fundamental” importance as each of the other incorpo8

In Timbs, the Court noted that the “sole exception” to this

rule is “that the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings,” which it ascribed to the

“‘unusual division among the Justices’” in Apodaca. Timbs, 139 S.

Ct. at 687 n.1.

13

rated Sixth Amendment rights. See Patton, 281 U.S. at

290 (unanimity right is “substantial and essential”);

Johnson, 406 U.S. at 369 (Powell J.) (“[U]nanimity is one

of the indispensable features of federal jury trial.”) Like

the reasonable doubt standard, it is of ancient vintage

and touches upon the jury’s core function. Johnson, 406

U.S. at 381-383 (Douglas, J., dissenting). It is therefore

peculiar to estrange jury unanimity from its related

rights within the Sixth Amendment. Justice Douglas

observed the anomaly when it first arose, asking how an

incorporated Sixth Amendment could nonetheless secure a right to unanimity only in federal trials. Id.; see

also id. at 395 (Brennan, J., dissenting) (“Readers of today’s opinions may be understandably puzzled ….”).

Today it is clear there is no reason for such an exception. As explained in Part II.A, infra, the American

Bar Association’s survey of research since the 1972 Apodaca decision shows that jury unanimity serves a crucial

function in the criminal justice system, by fostering effective group decision making, protecting minority jury

votes, and reducing inconsistencies. Moreover, professed concerns about “efficiency” have long been a pretextual justification for a policy at least partly rooted in a

racially discriminatory purpose. For these reasons the

ABA’s Criminal Justice Standards have now for decades

called for unanimous jury verdicts. See pp. 2-3, supra.

C. Stare Decisis Is Insufficient Reason To Preserve Apodaca

Given the weight of both this Court’s case law and

the research militating in favor of a fully incorporated

Sixth Amendment, the sole justification for continuing

to permit non-unanimous jury verdicts is stare decisis.

But in this highly unusual context, stare decisis does

not warrant adherence to Apodaca.

14

“Overruling precedent is never a small matter.”

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409

(2015). Time and again this Court has explained that

stare decisis is a “foundation stone of the rule of law,”

Michigan v. Bay Mills Indian Community, 572 U.S.

782, 798 (2014), necessary to “promote[] the evenhanded, predictable, and consistent development of legal

principles, foster[] reliance on judicial decisions, and

contribute[] to the actual and perceived integrity of the

judicial process.” Payne v. Tennessee, 501 U.S. 808, 827

(1991). But stare decisis has never been an absolute

rule in this Court, and the Court has been more willing

to reconsider its prior decisions when it “interpret[s]

the Constitution because [that] interpretation can be

altered only by constitutional amendment or by overruling [its] prior decisions.” Agostini v. Felton, 521

U.S. 203, 235 (1997).

The ABA respectfully submits that “special justification” exists to overrule Apodaca. As an initial matter,

as this Court recently observed, the Apodaca plurality

opinion was ‘“the result of an unusual division among

the Justices,”’ Timbs, 139 S. Ct. at 687 n.1, with the concurring opinion of Justice Powell effectively producing

precedent with which eight other Justices differed.

Overruling Apodaca is thus not to succumb to a temptation for later courts to overrule earlier, well-reasoned

decisions with which they simply disagree. Rather,

here there is effectively no prior “decision” by the Court

at all, so much as the opinion of one Justice advancing a

theory of partial incorporation that the other eight Justices rejected—and a quirk of arithmetic.

Moreover, developments in the Court’s case law

and empirical research have eroded support for the two

(competing) rationales for Apodaca. As explained

above, the Apodaca plurality’s rationale—that the

15

Sixth Amendment does not require jury unanimity, period—has been repudiated by this Court, as has the

concurrence’s rationale—that the Sixth Amendment

need not be incorporated in toto. See pp. 6-7, supra.

Moreover, the two States that have allowed nonunanimous juries, Louisiana and Oregon, do not have a

substantial reliance interest in the perpetuation of this

plainly erroneous legal rule.9 A ruling for petitioner

here would not threaten any upheaval of their judicial

administration. Rather, those two States would merely

become aligned with the 48 other States and the entire

federal system by dint of minor adjustment of criminal

procedure. See Payne, 501 U.S. at 828 (“Considerations

in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance

interests are involved; the opposite is true in cases …

involving procedural and evidentiary rules.”) (internal

citations omitted).

Indeed, it is the State’s position that would disturb

the law in the way that stare decisis seeks to prevent.

Louisiana has argued (Opp. 6-12) that the Sixth

Amendment does not require unanimity at all. Such a

ruling would expose all potential criminal defendants to

the possibility of conviction by split verdict—a practice

that virtually every jurisdiction in the nation has rejected. It would be ironic indeed were stare decisis

used to justify such a result.

9

This case does not require the Court to consider whether a

decision that the Sixth and Fourteenth Amendments require unanimous verdicts would apply retroactively to cases that are already

final. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (“New

rules of procedure … generally do not apply retroactively.”).

16

II. A UNANIMITY REQUIREMENT PROMOTES THE RELIABILITY OF JURY VERDICTS AND PUBLIC CONFIDENCE IN

THE CRIMINAL JUSTICE SYSTEM

A. A Unanimity Rule Promotes Better Decision

Making By Juries

When the Court last considered the issue of jury

unanimity in Apodaca and Johnson, every Justice

agreed on the basic principle that the Sixth Amendment should be construed to promote thorough jury deliberations, attention to minority viewpoints, and community confidence in the criminal justice system, but

they disagreed on whether unanimity was necessary to

those constitutional objectives. The Justices disagreed,

in particular, on the effect that non-unanimous decision

rules would have on the jury’s deliberative process.

Compare Johnson, 406 U.S. at 361 (suggesting that jury members would not automatically and prematurely

“cease discussion and outvote a minority” under a nonunanimous decision rule) and id. at 374 & n.12 (Powell,

J.) (predicting that community confidence in jury verdicts would not diminish under a rule permitting nonunanimous verdicts) with id. at 388 (Douglas, J.) (nonunanimous verdicts “diminish[] the reliability of a jury”) and id. at 398 (Stewart, J.) (non-unanimous verdicts suppress consideration of minority viewpoints and

undermine “community confidence in the administration of justice”).

At the time of the Court’s decisions in Apodaca and

Johnson, there was little empirical research that might

have confirmed or disproved those competing predictions.10 Since that time, extensive studies have been

10

The Court did have empirical evidence that a nonunanimity rule makes it easier in some cases for the prosecution to

obtain a conviction. As Justice Douglas related, the influential

17

conducted into the way juries make decisions and have

reached conclusions that support a unanimity rule.11

Several of those studies were reviewed by the ABA

when it adopted its 2005 Principles for Juries and Jury

Trials, which reconfirmed the ABA’s support for unanimous jury verdicts.12

study of juries by Professors Kalven and Zeisel concluded that, in

States with a unanimity requirement, 56% of deadlocked juries

contained either one, two, or three dissenters, and the majority

favored the prosecution in 44% of those cases (i.e., of the 56%) but

the defendant in only 12%. Thus, although a non-unanimity rule

may reduce the number of hung juries, it likely does so in a way

that systematically favors the prosecution. See Johnson, 406 U.S.

at 390-391 (Douglas, J., dissenting) (discussing Kalven & Zeisel,

The American Jury 461, 488 (1966)). Subsequent research supports that insight. See Buckhout et al., Jury Verdicts: Comparison of 6- vs. 12-Person Juries and Unanimous vs. Majority Decision Rule in a Murder Trial, 10 Bull. Psychonomic Soc’y 175, 178

(1977) (in mock-jury study, “the majority … verdict rule clearly

[resulted in] more convictions”).

11

This Court has previously considered empirical evidence

when assessing the constitutional contours of the jury trial right.

See Ballew v. Georgia, 435 U.S. 223, 231 n.10 (1978) (Blackmun, J.)

(social science research supported a conclusion that a jury smaller

than six persons could not fulfill its constitutional role).

12

Given the difficulties (and in many situations the impermissibility) of observing live jury deliberations, many studies of jury

dynamics have necessarily involved controlled experiments with

mock juries. See, e.g., Hastie et al., Inside the Jury (1983); Saks,

Jury Verdicts: The Role of Group Size and Social Decision Rule

(1977). Professor Hastie’s research team culled representative

jury pools from an actual Massachusetts venire, conducted voir

dire, and selected juries of twelve. Each jury was shown an identical (pre-taped) murder trial and was given identical instructions,

except that one third of the panels were told that unanimity was

required, one third were told that ten votes were needed for a

verdict, and one third were told that eight votes were needed. See

Hastie, supra, at 60. Professor Saks’s team selected 451 former

18

Unanimous juries are not flawless, of course. But

research does indicate that a unanimity rule fosters

more thorough, careful, and reliable deliberations because it requires minority viewpoints to be considered

and, where possible, accepted or rejected by the entire

jury. Where unanimity is required, jurors tend to evaluate evidence more thoroughly, spend more time deliberating, and take more ballots. By contrast, where unanimity is not required, jurors tend to end deliberations

once the minimum number for a verdict is reached.

ABA, Principles for Juries and Jury Trials, Principle

4.B Commentary 24 (2005); see Hastie et al., Inside the

Jury 60 tbl. 4.1 (1983) (finding that 12-person juries required to reach unanimous verdicts deliberated for 138

minutes on average, whereas those required to reach an

8-member majority deliberated for only an average of

75 minutes); Saks, Jury Verdicts: The Role of Group

Size and Social Decision Rule 94 (1977) (finding that

once jurors reach the threshold for a majority-rule verdict, they regard that as “psychologically binding” and

do not thereafter change their views toward the minority position); Devine et al., Jury Decision Making: 45

Years of Empirical Research on Deliberating Groups, 7

Psych. Pub. Pol’y & L. 622, 669 (2001); Davis et al., The

Decision Processes of 6- and 12-Person Mock Juries

Assigned Unanimous and Two-Thirds Majority Rules,

32 J. Personality & Soc. Psychol. 1, 12 (1975) (finding

jurors from Franklin County, Ohio, to serve on 58 mock juries,

which were shown a one-hour videotape of a staged felony burglary trial. The 58 juries were randomly allocated six- or twelvemember compositions and unanimous or two-thirds (4/6 or 8/12)

decision rules. Saks, Jury Verdicts: The Role of Group Size and

Social Decision Rule 62-66 (1977); see also Nemeth, Interactions

Between Jurors as a Function of Majority vs. Unanimity Decision Rules, 7 J. Appl. Soc. Psych. 38 (1977) (mock juries composed

of University of Virginia undergraduates).

19

that unanimity requirement increased deliberation and

“conscientious” consideration of dissenting views); Taylor-Thompson, Empty Votes in Jury Deliberations, 113

Harv. L. Rev. 1262, 1273 (2000) (citing empirical research showing that “majority rule discourages painstaking analyses of the evidence and steers jurors toward swift judgments that too often are erroneous or at

least highly questionable”).

In particular, a unanimity rule protects dissenting

voices in the jury room, because it requires that every

point of view be considered and all jurors be persuaded.

Researchers have found that, “[c]ompared to unanimous

rule juries, quorum rule juries have been found to deliberate less equitably (that is, the distribution of talking is

skewed more extremely, with the talkative jurors talking more and the untalkative talking less than in unanimous rule juries.” Saks, What Do Jury Experiments

Tell Us About How Juries (Should) Make Decisions?, 6

S. Cal. Interdisc. L.J. 1, 40 (1997). On majority-rule juries, “large factions … adopt a more forceful, bullying,

persuasive style,” possibly because “their members realize that it is not necessary to respond to all opposition

arguments when their goal is to achieve a faction size of

only eight or ten members.” Hastie et al., supra, at 112;

Nemeth, Interactions Between Jurors as a Function of

Majority vs. Unanimity Decision Rules, 7 J. Applied

Soc. Psych. 38, 55 (1977) (concluding that unanimity-rule

juries were more likely to reach consensus and more

likely to change their opinions); Kerr et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition

and Assigned Decision Rule on the Judgments of Mock

Juries, 34 J. Personality & Soc. Psychol. 282, 290 (1976)

(although non-unanimous rules produce faster verdicts

and fewer hung juries, a majority of non-unanimous ju-

20

ries immediately ceased deliberation upon hitting the

required majority-rule threshold).

As Professor Hastie summarized the differences

between unanimity-rule and majority-rule jurors:

[B]ehavior in unanimous rule juries contrasts with typical behavior in majority rule juries in six respects: deliberation time (majority

rule juries take less time to render verdicts),

small faction participation (members of small

factions are less likely to speak under majority

rules), faction growth rates (large factions attract members more rapidly under majority

rules); holdouts (jurors are more apt to be

holdouts at the end of deliberation under majority rules), time of voting (majority rule juries tend to vote sooner) and deliberation style

(majority rule juries are slightly likelier to

adopt a verdict-driven deliberation style in

contrast to the evidence-driven style)….

Verdict driven juries vote early and organize discussion in an adversarial manner around

verdict-favoring factions, as opposed to evidence-driven juries which defer voting and

start with a relatively united discussion of evidence, turning to verdict categories later in deliberation.

Hastie et al., supra, at 173-174.

Research also indicates that individual jurors are

themselves less satisfied with the decisions they reach

under non-unanimity rules. See Nemeth, supra, at 47

(“Individuals under unanimity requirements also tended more to agree that justice had been administered

than individuals required to deliberate to 2/3 majori-

21

ty… .”); Kerr et al., 34 J. Personality & Soc. Psychol. at

290 (finding that a non-unanimous decision rule results

in decreased ‘“satisfaction with the way decisions were

made in the jury”’ and diminished ‘“satisfaction with

the final verdict”’).

And perhaps most crucially, the same is true of the

public at large. Citizens consider unanimous juries to

be more accurate, more thorough, more likely to account for the views of jurors holding contrary views,

more likely to minimize bias, better able to represent

minorities, and fairer. See ABA, 2005 Jury Trial Principles, Principle 4.B Commentary, supra, at 24-26;

MacCoun & Tyler, The Basis of Citizens’ Perceptions of

the Criminal Jury: Procedural Fairness, Accuracy,

and Efficiency, 12 Law & Hum. Behav. 333, 337-338 &

tbl. 1 (1988). As then-Circuit Judge Anthony Kennedy

observed in 1978, “[b]oth the defendant and society can

place special confidence in a unanimous verdict.” United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978).13

Many of the findings cited in the ABA’s 2005 Principles were confirmed by a subsequent study of actual

civil jury deliberations in Arizona, which allows nonunanimous (six of eight) verdicts in civil trials. See Diamond et al., Revisiting the Unanimity Requirement:

The Behavior of the Non-Unanimous Civil Jury, 100

13

The actual results of Louisiana’s system support Justice

Kennedy’s concern about confidence in non-unanimous verdicts.

Louisiana is second in the rate of wrongful convictions in the nation, and there is reason to believe Louisiana’s non-unanimous jury system is a contributing factor. “In 2017, the Innocence Project-New Orleans reported that [11] of [25] Louisiana exonerations

resulted from trials where non-unanimous juries were used.” See

ABA Resolution 100B, Report at 4 (May 1, 2018).

22

Nw. U. L. Rev. 201, 205 (2006).14 The authors of that

study concluded that the jurors were “quite conscious”

that they did not need unanimity, which in some cases

translated into “dismissive treatment of minority jurors (‘holdouts’),” and that “both outvoted holdouts and

majority jurors are less positive about their juries than

jurors who reach unanimous verdicts, giving lower assessments of their jury’s thoroughness and then openmindedness of their fellow jurors.” Id. at 205.

The conclusions by social scientists that juries operating under non-unanimous rules may ignore dissenting or distinctive viewpoints is particularly troubling

for confidence in the administration of justice. As Justice Stewart warned in Apodaca and Johnson, “nine

jurors can simply ignore the views of their fellow panel

members of a different race or class.” 406 U.S. at 397

(Stewart, J., dissenting). This Court has repeatedly

emphasized that “[o]ur notions of what a proper jury is

have developed in harmony with our basic concepts of a

democratic society and a representative government,”

and that if a jury is to fulfill that function, it must “be a

body truly representative of the community … and not

the organ of any special group or class.” Taylor v. Louisiana, 419 U.S. 522, 527 (1975) (citations and internal

quotation marks omitted); see Carter v. Jury Commission, 396 U.S. 320, 330 (1970).

A rule that would allow racial or gender bias to

take root in the jury room thus warrants particularly

close scrutiny. Cf. Pena-Rodriguez v. Colorado, 137 S.

Ct. 855, 868 (2017) (“[R]acial bias [is] a familiar and re14

The authors of this study were permitted by the Arizona

Supreme Court to videotape 50 civil jury trials and deliberations

between 1998 and 2001 and to administer questionnaires to the

jurors and judges.

23

curring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”). To be

sure, a criminal defendant is not entitled to a jury of

any particular demographic composition. But just as

confidence in the jury system suffers when potential

jurors of particular categories (such as race and sex)

are excluded from serving, see Powers v. Ohio, 499 U.S.

400, 413-414 (1991); Batson v. Kentucky, 476 U.S. 79, 87

(1986), so too does it suffer when the jury operates under rules that would allow a majority to treat the criminal justice system as its exclusive province.

B. The Non-Unanimity Rule In Louisiana And

Oregon Has Roots In Racial Discrimination

As social science research shows, concerns that

non-unanimous juries result in disenfranchisement of

minority jurors and easier convictions of minority defendants are well-founded. And those concerns are all

the more troubling because that is not only the effect,

but also the original purpose, of the non-unanimous rule

in Louisiana and Oregon—reason enough to render it

constitutionally suspect. See Hunter v. Underwood,

471 U.S. 222, 229 (1985).

Louisiana and Oregon both initially required unanimous juries in all felony cases. The non-unanimous

verdict arrived in Louisiana only after Reconstruction,

as the white majority sought to perpetuate its supremacy in the State. Non-unanimous verdicts were first

introduced in 1880, allowing defendants to be convicted

by nine of twelve jurors. Split-verdict convictions were

written into the Louisiana Constitution at the 1898

Constitutional Convention, which was deeply mired in

racism. Indeed, the Convention’s support for white supremacy was not a hidden fact, but a proclaimed truth.

At the Convention’s conclusion, the Chairman of the

24

Committee on the Judiciary spoke amid applause and

announced the Convention’s accomplished purpose:

“Now then, what have we done? is the question. Our

mission was, in the first place, to establish the supremacy of the white race in this State to the extent to

which it could be legally and constitutionally done.” Official Journal of the Proceedings of the Constitutional

Convention of the State of Louisiana 375 (1898) (“Louisiana Journal”).

Non-unanimous convictions were part of that design.

State officials announced, when discussing the proposed

Article 116 allowing non-unanimous verdicts: “We need

a system better adapted to the peculiar condition of our

State.” Louisiana Journal at 76. The more “efficient”

system allowed the State to obtain quick convictions that

facilitated the use of free prisoner labor under Louisiana’s convict-leasing system and ensured that AfricanAmerican jurors could not use their voting power on the

jury to block convictions of other African Americans.

See generally Aiello, Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana (2015); Allen-Bell, How the Narrative About Louisiana’s NonUnanimous Criminal Jury System Became a Person of

Interest in the Case Against Justice in the Deep South,

67 Mercer L. Rev. 585 (2016).15

Non-unanimous jury verdicts in Oregon have a similarly tainted racial origin. “Oregon adopted nonunanimous juries in the wake of a 1933 murder prosecution of a

15

The State’s 1973 constitutional conviction changed the law

to require the vote of at least ten jurors. As in 1898, “efficiency”

was a stated reason for retaining split verdicts. Although race

was not discussed as openly as at the 1898 convention, the rule of

non-unanimous verdicts was reaffirmed despite expressed concerns that mostly “poor, illiterate, and mostly minority groups”

were affected. See ABA Resolution 100B, Report, supra, at 5.

25

Jewish defendant, which controversially ended in a manslaughter verdict—a compromise resulting from a lone

holdout juror.” Frampton, The Jim Crow Jury, 71 Vand.

L. Rev. 1593, 1598 n.21 (2018). The backdrop of that trial

was a rising Ku Klux Klan and “[a] society where racism,

religious bigotry, and anti-immigrant sentiments were

deeply entrenched in the laws, culture, and social life.”

Kaplan & 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, 3 (2016) (quotation marks omitted). An

Oregon circuit court recently surveyed the origins of Oregon’s non-unanimous jury system and found that “race

and ethnicity was a motivating factor” in its adoption.

Opinion 12-16, State v. Williams, No. 15CR58698 (Or. Cir.

Ct. Multnomah Cty. Dec. 15, 2016).

Even if the historical origins of Louisiana’s splitverdict system were not enough to condemn it, there is

evidence that even today that system continues to exacerbate severe racial disparities in Louisiana’s criminal justice system. African-Americans constitute approximately one third of the population of Louisiana,

but they make up two thirds of state prisoners and

three fourths of inmates serving life imprisonment

without parole. An analysis showed that 40 percent of

trial convictions came over the objection of one or two

holdouts, and that when the defendant was AfricanAmerican, the proportion went up to 43 percent, versus

33 percent for white defendants.16

16

See Adelson et al., How an Abnormal Louisiana Law Deprives, Discriminates and Drives Incarceration: Tilting the

Scales, The Advocate (Apr. 1, 2018), https://www.theadvocate.com/

baton_rouge/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a

325de.html.

26

All of the above reasons—the incongruity of the

Apodaca decision with the rest of this Court’s Sixth

Amendment and incorporation jurisprudence; social

science research demonstrating the flaws of nonunanimous verdicts; and the racial origins and implications of that system—are enough to make this the extraordinary case in which the Court should overrule a

prior decision. The ABA therefore respectfully submits that the Court should bring to an end this unusual

and unfortunate aspect of our criminal justice system.

CONCLUSION

The judgment of the Louisiana Court of Appeal

should be reversed.

Respectfully submitted.

PAUL R.Q. WOLFSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave. NW

Washington DC 20006

ERIC L. HAWKINS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

JUNE 2019

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org