Respondents Brief — Evangelisto Ramos, Petitioner v. Louisiana

No. 18-5924

In the Supreme Court of the United States

__________________

EVANGELISTO RAMOS,

v.

LOUISIANA,

__________________

Petitioner,

Respondent.

On Writ of Certiorari to the

Court of Appeals of Louisiana, Fourth Circuit

__________________

BRIEF OF RESPONDENT

__________________

JEFF LANDRY

Attorney General

ELIZABETH B. MURRILL

Solicitor General

Counsel of Record

MICHELLE GHETTI

Deputy Solicitor General

COLIN CLARK

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

1885 North Third Street

Baton Rouge, LA 70804

(225) 326-6766

murrille@ag.louisiana.gov

LEON A. CANNIZZARO. JR.

District Attorney,

Parish of Orleans

Donna Andrieu

Chief of Appeals

619 S. White Street

New Orleans, LA 70119

(504) 822-2414

WILLIAM S. CONSOVOY

JEFFREY M. HARRIS

Consovoy McCarthy PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

Counsel for Respondent

August 16, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether this Court should overrule Apodaca v.

Oregon, 406 U.S. 404 (1972), and hold that the Sixth

Amendment, as incorporated through the Fourteenth

Amendment, guarantees State criminal defendants the

right to a unanimous jury verdict.

ii

TABLE OF CONTENTS

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

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

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Factual Background. . . . . . . . . . . . . . . . . . 1

B. Procedural History . . . . . . . . . . . . . . . . . . . 2

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I.

THE SIXTH AMENDMENT’S JURY TRIAL CLAUSE

DOES NOT REQUIRE UNANIMITY . . . . . . . . . . 11

A. A “Trial By Jury” Under the Sixth

Amendment Does Not Require Every

Feature of the Common Law Jury. . . . . . 11

B. A Unanimous Verdict Is Not an

Indispensable Component of a “Trial By

Jury.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. There is inadequate historical support

for unanimity being indispensable to a

jury trial . . . . . . . . . . . . . . . . . . . . . . . 20

2. Louisiana law fulfills all of the

purposes animating the jury trial

requirement. . . . . . . . . . . . . . . . . . . . . 30

3. A unanimity rule is not ingrained in

this Court’s Sixth Amendment

precedent . . . . . . . . . . . . . . . . . . . . . . . 40

iii

II.

THE FOURTEENTH AMENDMENT DOES NOT

REQUIRE A UNANIMOUS JURY VERDICT TO

CONVICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

III.

APODACA V. OREGON SHOULD NOT BE

OVERRULED . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

iv

TABLE OF AUTHORITIES

CASES

Alleyne v. United States,

570 U.S. 99 (2013). . . . . . . . . . . . . . . . . . . . . . . . 47

American Nat. Bank and Trust Co. of Chicago v.

Haroco, Inc., 473 U.S. 606 (1985). . . . . . . . . . . . 43

American Publishing Co. v. Fisher,

166 U.S. 464 (1897). . . . . . . . . . . . . . . . . . . . . . . 40

Andres v. United States,

333 U.S. 740 (1948). . . . . . . . . . . . . . . . . . . . 40, 41

Apodaca v. Oregon,

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

Apprendi v. New Jersey,

530 U.S. 466 (2000). . . . . . . . . . . . . . . . . . . . . . . 41

Blakely v. Washington,

542 U.S. 296 (2004). . . . . . . . . . . . . . . . . . . . . . . 41

Blueford v. Arkansas,

566 U.S. 599 (2012). . . . . . . . . . . . . . . . . . . . 35, 36

Bucklew v. Precythe,

139 S. Ct. 1112 (2019). . . . . . . . . . . . . . . . . . . . . 13

Burch v. Louisiana,

441 U.S. 130 (1979). . . . . . . . . . . . . . . . . . . . . . . 45

Callan v. Wilson,

127 U.S. 540 (1888). . . . . . . . . . . . . . . . . . . . . . . 14

Capital Traction Co. v. Hof,

174 U.S. 1 (1899). . . . . . . . . . . . . . . . . . . . . . . . . 15

v

Comptroller of Treasury of Md. v. Wynne,

135 S. Ct. 1787 (2015). . . . . . . . . . . . . . . . . . . . . 19

Descamps v. United States,

570 U.S. 254 (2013). . . . . . . . . . . . . . . . . . . . . . . 42

District Attorney’s Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52 (2009) . . . . . . . . . . . . 8, 9, 44

Duncan v. Louisiana,

391 U.S. 145 (1968). . . . . . . . . . . . . . . . . . . . 31, 33

Gamble v. United States,

139 S. Ct. 1960 (2019). . . . . . . . . . 9, 11, 30, 46, 48

Haywood v. Drown,

556 U.S. 729 (2009). . . . . . . . . . . . . . . . . . . . 19, 50

Johnson v. Governor of State of Fla.,

405 F.3d 1214 (11th Cir. 2005). . . . . . . . . . . . . . 36

Johnson v. Louisiana,

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

Jordan v. Massachusetts,

225 U.S. 167 (1912). . . . . . . . . . . . . . . . . . . . . . . 44

Kansas v. Carr,

136 S. Ct. 633 (2016). . . . . . . . . . . . . . . . . . . 44, 45

Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,

551 U.S. 877 (2007). . . . . . . . . . . . . . . . . . . . . 9, 47

Maxwell v. Dow,

176 U.S. 581 (1900). . . . . . . . . . . . . . . . . . . . . . . 40

McDonald v. Chicago,

561 U.S. 741 (2010). . . . . . . . . . . . . . . . . . . . 42, 46

vi

Medina v. California,

505 U.S. 437 (1992). . . . . . . . . . . . . . . . . . . . . . . 43

O’Callaghan v. Attorney General,

[1993] 2 I.R. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Patton v. United States,

281 U.S. 276 (1930). . . . . . . . . . . . . . . . . . . . . . . 40

Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009). . . . . . . . . . . . . . . . . . . . . . . 43

Richardson v. United States,

526 U.S. 813 (1999). . . . . . . . . . . . . . . . . . . . . . . 42

S. Union Co. v. United States,

567 U.S. 343 (2012). . . . . . . . . . . . . . . . . . . . . . . 41

Seminole Tribe of Fla. v. Fla.,

517 U.S. 44 (1996). . . . . . . . . . . . . . . . . . . . . . . . 46

Shelby County v. Holder,

570 U.S. 529 (2013). . . . . . . . . . . . . . . . . . . . . . . 38

Shreveport v. Baylock,

107 So. 2d 419 (La. 1958) . . . . . . . . . . . . . . . . . . 39

State v. Hankton,

2012-0375 (La. App. 4 Cir. 8/2/13),

122 So.3d 1028 . . . . . . . . . . . . . . . . . . . . . . . . . . 39

State v. Maxie,

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

Oct. 11, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 39, 40

Sveen v. Melin,

138 S. Ct. 1815 (2018). . . . . . . . . . . . . . . . . . . . . 14

vii

Swift & Co. v. Wickham,

382 U.S. 111 (1965). . . . . . . . . . . . . . . . . . . . . . . 48

Thompson v. Utah,

170 U.S. 343 (1898). . . . . . . . . . . . . . . . . . . . . . . 40

Timbs v. Indiana,

139 S. Ct. 682 (2019). . . . . . . . . . . . . . . . 42, 43, 46

Turner Broad. System, Inc. v. FCC,

520 U.S. 180 (1997). . . . . . . . . . . . . . . . . . . . . . . 44

United States v. Booker,

543 U.S. 220 (2005). . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Gaudin,

515 U.S. 506 (1995). . . . . . . . . . . . . . . . . . . . 41, 42

Utah v. Strieff,

136 S. Ct. 2056 (2016). . . . . . . . . . . . . . . . . . . . . 50

Williams v. Florida,

399 U.S. 78 (1970). . . . . . . . . . . . . . . . . . . . passim

In re Winship,

397 U.S. 358 (1970). . . . . . . . . . . . . . . . . . . . . . . 44

CONSTITUTION, STATUTES, ACTS

U.S. Const. Art. III. . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. VII . . . . . . . . . . . . . 12, 14, 27, 40

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . 43, 45

21 U.S.C. §848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

viii

Act of Congress March 26, 1804, c. 38,

2 U.S. Stat. 283 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Act of Congress March 3, 1805, c. 23,

2 U.S. Stat 322 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Act of Congress March 3, 1805, c. 31,

2 U.S. Stat. 331 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Act of Congress Feb. 20, 1811, c. 21,

2 U.S. Stat. 641, Enabling Act . . . . . . . . . . . . . . 16

Delaware Declaration of Rights of 1776, §14 . . . . . 15

Georgia Constitution of 1777, Art. LXI . . . . . . . . . . 16

2018 La. Reg Sess., Act 722 . . . . . . . . . . . . . . . . . . . 39

Maryland Constitution of 1776, Art. XIX . . . . . . . . 15

Massachusetts Constitution of 1780, Art. XII . . . . 16

New Jersey Constitution of 1776, Art. XXII . . . . . . 15

New York Constitution of 1777, Art. XLI . . . . . . . . 15

North Carolina Constitution of 1776, Art. IX . . 15, 16

Pennsylvania Constitution of 1776, Art. IX . . . . . . 16

Vermont Constitution of 1778, Art. X . . . . . . . . . . . 16

Virginia Constitution of 1776, Bill of Rights, §8. . . 16

RULES

Fed. R. Crim. P. 31(a). . . . . . . . . . . . . . . . . . . . . . . . 50

Fed. R. Evid. 201(b) . . . . . . . . . . . . . . . . . . . . . . . . . 39

ix

OTHER AUTHORITIES

Jeffrey Abramson, We, the Jury: The Jury System

and the Ideal of Democracy (1994) . . . . . . . . . . 49

1 John Adams, A Defence of the Constitutions of

Government of the United States of America 372

(1794). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Akhil Reed Amar, Reinventing Juries: Ten

Suggested Reforms, 28 U.C. Davis L. Rev. 1169

(1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131 (1992). . . . . . . 14

Dale E. Bennett, Louisiana Criminal Procedure—A

Critical Appraisal, 14 La. L. Rev. 11 (1953) . . . 38

1 Joel Prentiss Bishop, Commentaries on the Law

of Criminal Procedure §897 (1866). . . . . . . . 28, 29

William Blackstone, Commentaries on the Laws of

England (1769) . . . . . . . . . . . . . . . . . . . . 13, 21, 22

Bureau of Justice Statistics, State Court

Organization (2004) . . . . . . . . . . . . . . . . . . . . . . 48

6 Nathan Dane, A General Abridgment and Digest

of American Law 226 (1824). . . . . . . . . . 26, 27, 28

Brian L. Frye, et al., Lecture from March 12, 1898,

in Justice John Marshall Harlan: Lectures on

Constitutional Law, 1897-98, 81 Geo. Wash. L.

Rev. Arguendo 244 (2013). . . . . . . . . . . . . . . 29, 30

x

Michael H. Glasser, Letting the Supermajority Rule:

Nonunanimous Verdicts in Criminal Trials, 24

Fla. St. U. L. Rev. 659 (1997) . . . . . . . . . . . . . . . 31

1 Matthew Hale, The History of the Pleas of the

Crown 32 (1736) . . . . . . . . . . . . . . . . . . . . . . 23, 24

Thomas J. Kernan, The Constitutional Convention

of 1898 and Its Work, Proceedings of the La. B.

Ass’n 54 (1898-99) . . . . . . . . . . . . . . . . . . . . . . . . 37

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

(Antonio Schioppa ed., 1987) . . . . . . . . . . . . . . . 24

Ethan J. Lieb, A Comparison of Criminal Jury

Decision Rules in Democratic Countries, 5 Ohio

St. J. Crim. L. 629 (2008) . . . . . . . . . . . . . . . 32, 33

Sally Lloyd-Bostock & Cheryl Thomas, Decline of

the “Little Parliament”: Juries and Jury Reform

in England and Wales, 62-SPG Law & Contemp.

Probs. 7 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Jere W. Morehead, A ‘Modest’ Proposal for Jury

Reform: The Elimination of Required

Unanimous Jury Verdicts, 46 U. Kan. L. Rev.

933 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

John Proffatt, A Treatise on Trial by Jury

(1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Records of the Louisiana Constitutional Convention

of 1973: Convention Transcripts, Vol. 7, (La.

Constitutional Convention Records Commission

1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

xi

Reinsch, The English Common Law in the Early

American Colonies, in 1 Select Essays in AngloAmerican Legal History 367 (1907) . . . . . . . . . . 15

2 Joseph Story, Commentaries on the Constitution

of the United States §1779 (3d ed. 1858) . . . . . . 25

2 Joseph Story, Commentaries on the Constitution

of the United States § 1779 (1891). . . . . . . . 25, 26

Jacob Tanzer, Nonunanimous Verdicts in Criminal

Cases: The Oregon Experience, 14 Judges J. 4

(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

1

STATEMENT

A. Factual Background

On the morning of November 26, 2014, Trinece

Fedison was found stuffed in a trash can, dead from

multiple stab wounds to the neck and abdomen, with

her pants around her ankles and her shirt pulled up to

her chest. JA 5. A code enforcement officer found the

trash can behind a house in an alley during a routine

inspection of blighted property. Id. He discovered her

body when he attempted to move the trash can, only to

find that it was much heavier than expected. Id.

There was overwhelming evidence that Evangelisto

Ramos committed the murder. Ramos conceded that he

was sexually involved with Trinece, and his DNA was

found in her vagina and on the handles of the trash can

in which her body was found. JA 9. Trinece’s nephew

also identified Ramos as having entered a house with

his aunt on the day she was murdered. JA 6. This was

the last time Trinece Fedison was seen alive. It was

also determined that the garbage can belonged to a

church located across the street from Ramos’s house.

JA 8.

Ramos suggested that Trinece was a prostitute and

had been killed by “two black men” who appeared in a

car as she was leaving his house after they had sex. JA

7. But the details of this story changed each time

Ramos told it. When speaking to a co-worker, he said

that the “two black men” were in an SUV and were

harassing Trinece, id., but when he later spoke to

detectives he did not mention harassment and said the

alleged perpetrators were in a Buick, JA 9-10.

2

Moreover, Ramos was the only person interviewed by

the police who asserted that Trinece was a prostitute;

the investigation revealed that she had a drug problem

but had never been arrested for prostitution, and no

other witness corroborated Ramos’s accusations. JA 10.

Finally, Ramos made the implausible assertion that his

DNA was on the handle of the garbage can in which

Trinece was found (which did not belong to him)

because he had put a bag of trash in it shortly after

having sex with her. JA 9.

B.

Procedural History

A grand jury indicted Ramos on one count of seconddegree murder. After a two-day trial that highlighted

the DNA evidence, the testimony of the witness who

last saw Trinece alive, and Ramos’s inconsistent and

implausible defenses, he was convicted of seconddegree murder by a 10-2 vote. JA 4. Ramos was

sentenced to life in prison without the possibility of

parole. Id. at 5.

On appeal, Ramos raised four assignments of error.

He first argued that the evidence was insufficient to

support the conviction because it “was circumstantial

and failed to exclude every reasonable hypothesis of

innocence.” JA 12. The court of appeals rejected that

contention, finding that a rational jury could have

found Ramos guilty beyond a reasonable doubt. JA 1216. After carefully reviewing the DNA and eyewitness

evidence—and Ramos’s “conflicting stories regarding

what transpired”—the appellate court found that “the

evidence presented by the State including the

testimony of the witnesses provided sufficient

3

evidence … to support the jury’s verdict of guilty.” JA

15-16.

Second, Ramos argued that the prosecution made

improper remarks during opening and closing

statements suggesting he had raped or sexually

assaulted Trinece; Ramos asserted that those remarks

undermined his defense that any sexual contact was

consensual. JA 16-18. But, as the court of appeals

explained, sufficient evidence supported the

prosecution’s theory that Trinece was sexually

assaulted before being killed. Id. Ramos was free to

argue that “the sexual contact was consensual,” but it

was not unduly prejudicial for the prosecution to

advance its own reasonable interpretation of the

evidence. Id.

Third, Ramos argued (in a supplemental pro se

brief) that he had been racially profiled because

Trinece’s nephew—who was African-American—told

the police he believed a “Spanish guy” must have

committed the crime. JA 19-20. The court of appeals

rejected that contention, noting that there was no

evidence any of the police officers had engaged in racial

profiling and that the police did not even consider

Ramos a suspect until his DNA was found on Trinece’s

body and the handles of the trash can. Id.

Finally, Ramos asserted (also pro se) that “the trial

court erred in denying his motion to require a

unanimous jury verdict” because his conviction

“violate[s] the equal protection Clause.” JA 20 “Unlike

the familiar Sixth Amendment challenge to this State’s

non-unanimous jury regime,” Ramos’s supplemental

pro se brief argued, “the Equal Protection challenge

4

presented in this case has not been addressed on the

merits by any court.” Pro Se Brief (on file with Fourth

Circuit). Only in passing did he mention the Sixth

Amendment. Id. The court of appeals rejected all his

arguments. JA 20-22.

In his writ application to the Supreme Court of

Louisiana, Ramos again focused primarily on an equalprotection challenge to his conviction by a nonunanimous jury. Ramos expressly emphasized he was

not presenting “the familiar Sixth Amendment

challenge to this State’s non-unanimous jury regime.”

Application at 19, State v. Ramos, 2017-KO-2133 (La.

2017). The Supreme Court of Louisiana denied review

without dissent or written opinion. Pet. App. A11.

In his petition for certiorari, Ramos (now

represented by counsel) asked this Court to overrule

Apodaca v. Oregon, 406 U.S. 404 (1972). See Pet. for

Cert. 10-28. Ramos abandoned the equal-protection

claim he had pursued in the Louisiana courts. On April

29, 2019, the Court granted the petition.

SUMMARY OF ARGUMENT

Ramos correctly notes that this case presents “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.” Pet. Br. 15. But Petitioner’s

arguments on each of those issues are unavailing.

I. The Sixth Amendment’s Jury Trial Clause does

not require criminal convictions by a unanimous jury.

Ramos’s core theory is that the Sixth Amendment must

be deemed to require unanimity because that was the

5

common-law practice at the time of the Founding. But,

in holding that the Sixth Amendment did not implicitly

adopt the common-law rule mandating twelve jurors,

this Court rejected “the easy assumption . . . that if a

given feature existed in a jury at common law in 1789,

then it was necessarily preserved in the Constitution.”

Williams v. Florida, 399 U.S. 78, 92 (1970). Not “every

feature of the jury as it existed at common

law—whether incidental or essential to that

institution—was necessarily included in the

Constitution wherever that document referred to a

‘jury.’” Id. at 91.

Thus, the proper starting point is not the English

common law, but the U.S. Constitution’s text. Neither

Article III nor the Sixth Amendment—the two

provisions of the Constitution that address juries in

criminal cases—mentions a unanimity requirement.

That omission is telling because those provisions do

expressly mention other attributes of the jury system;

Article III requires that a jury trial take place in the

“state where the said crimes shall have been

committed,” and the Sixth Amendment further

restricts the location of the trial to the “State and

district” where the crime occurred.

The history of the Sixth Amendment eliminates any

doubt that the omission of a unanimity requirement

was intentional. Madison’s original draft of the Sixth

Amendment expressly guaranteed a jury trial that

included “the requisite of unanimity” and the “other

accustomed requisites” of the jury. But the Senate

rejected that proposal and the Conference Committee

adopted a modified proposal—minus any mention of

6

unanimity or “other accustomed requisites”—that

ultimately became the Sixth Amendment. Those

omissions are especially notable given that State

constitutions at the time—which were often drafted by

the Framers of the U.S. Constitution—took a variety of

approaches to the jury right. Some expressly required

unanimity; some expressly incorporated the English

common law; and others merely preserved an

unadorned right to a “jury trial.” There is accordingly

no reason to read an implicit unanimity requirement

into the Sixth Amendment’s general reference to an

“impartial jury.”

Ramos’s other historical arguments fare no better.

True, many of the sources Ramos cites (such as

Blackstone, Story, Dane, and Hale) acknowledge

unanimity was a requirement of the English common

law. But those sources generally mention unanimity

only in passing and give it no more prominence than

other features of the common-law jury that have never

been deemed requirements of the Sixth Amendment—

such as the requirements that juries consist of twelve

male property owners who would be held without food

and drink until they returned a unanimous verdict.

Again, it has never been the law that a certain jury

practice must be read into the Sixth Amendment

merely because it comports with historical or commonlaw practice.

Ramos’s purpose-based arguments also fail (to the

extent they are relevant to the constitutional inquiry at

all). The core purpose of a jury trial “obviously lies in

the interposition between the accused and his accuser

of the commonsense judgment of a group of laymen,

7

and in the community participation and shared

responsibility that results from that group’s

determination of guilt or innocence.” Williams, 399

U.S. at 100. Regardless of whether the jury’s final vote

is 12-0, 11-1, or 10-2, no defendant can be convicted

and deprived of his liberty until a body of his peers has

independently reviewed the evidence against him and

found him guilty beyond a reasonable doubt. Indeed,

recognizing that unanimity is not essential to the

purposes underlying the jury right, a large majority of

countries that provide for jury trials do not require

unanimity, including several (such as England) that

share common-law roots.

Nor is there any merit to Ramos’s accusations that

the non-unanimity rule is the product of racial animus.

Ramos did not present an equal protection challenge in

his certiorari petition, and the record does not even

disclose the racial makeup of the jury vote in this case.

Moreover, although the non-unanimity rule was

adopted in Louisiana’s 1898 Constitution—which did

include several provisions that were the unfortunate

product of racial animus—all available evidence

suggests that the non-unanimity rule was motivated by

concerns for judicial efficiency rather than an improper

racial purpose. In all events, this rule has been the

subject of extensive public debate over the intervening

120 years and has been modified several times in a prodefendant direction—including in the most recent

constitutional amendment, which now requires

unanimity on a prospective basis. Ramos cannot

plausibly suggest that the rule, in its current, highly

limited form, is the product of racial animus.

8

Finally, Ramos incorrectly asserts that a unanimity

requirement is ingrained in this Court’s early

precedents as well as its more recent decisions. Some

early cases alluded to unanimity in passing but never

squarely addressed or analyzed that issue. Indeed, as

recently as 1970, the Court had noted that this was

still an open question. See Williams, 399 U.S. at 101

n.46. Similarly, in the wake of Apodaca, the Court

occasionally stated that the Sixth Amendment required

unanimity but never addressed the reasoning or

validity of that proposition. A holding that the Sixth

Amendment does not require unanimity would have

minimal, if any, impact on this Court’s pre-Apodaca or

post-Apodaca jurisprudence.

II. Nothing in the Fourteenth Amendment imposes

a mandatory unanimity requirement on the States.

There is nothing to “incorporate” against the States

under the Due Process Clause because, as noted, there

is no underlying right to a unanimous jury.

Nor is there a “freestanding” due process right to

unanimity. Petitioner did not raise such an argument

below or in his certiorari petition, and for good reason.

The Fifth and Fourteenth Amendments afford the

same due process protections, and the Fifth

Amendment has never been construed as requiring

unanimity. See Johnson v. Louisiana, 406 U.S. 356, 359

(1972) (explaining “this Court has never held jury

unanimity to be a requisite of due process of law”). And

this Court has been hesitant to “suddenly

constitutionalize” an issue via the Due Process Clause

when “[t]he elected governments of the States are

actively confronting” it. District Attorney’s Office for

9

Third Judicial Dist. v. Osborne, 557 U.S. 52, 72-73

(2009). Louisiana’s non-unanimity rule has been the

subject of exhaustive public debate in recent

years—which has led to significant pro-defendant

amendments—and Ramos offers no compelling reason

to short-circuit this robust democratic process.

Ramos’s brief invocation of the Privileges or

Immunities Clause is also unavailing. This argument

was forfeited below; was not raised in the certiorari

petition; and may not apply to Ramos himself

depending on his citizenship status. More

fundamentally, however, Ramos offers no support for

this theory other than repeating his historical and

common-law arguments, which lack merit for all the

reasons discussed above.

III. Finally, there is no “special justification” for

this Court to abandon nearly 50 years of precedent

holding that States have discretion to permit

convictions by a non-unanimous vote. See Gamble v.

United States, 139 S. Ct. 1960, 1969 (2019). The

doctrine of stare decisis is about whether this Court

should “maintain[] settled law” or instead abandon it

for a different legal rule. Leegin Creative Leather

Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007).

Ramos offers no good reason for the Court to change

course at this late stage. The text of the Constitution

and history of the Sixth Amendment strongly support

Louisiana, and the historical evidence upon which

Ramos places so much weight is no better than

“middling.” Gamble, 139 S. Ct. at 1969. Moreover, there

is considerably less need for the Court to discard

precedent and change course on these issues given that

10

Louisiana now requires unanimity on a prospective

basis and Oregon is considering similar changes.

Overturning Apodaca, moreover, would lead to

significant practical problems and would unsettle

related areas of the law. The ink will not even be dry on

this Court’s opinion before the lower courts begin

receiving thousands of petitions for habeas relief

seeking to apply a mandatory unanimity rule

retroactively to long-final convictions in Louisiana and

Oregon. Indeed, such petitions are already being filed.

And, given that unanimity and a 12-person jury share

similar historical and common-law roots, this Court

should be prepared to reconsider the constitutionality

of less-than-12-person juries if it endorses Ramos’s

approach to the Sixth Amendment. Although just two

States have allowed convictions by a non-unanimous

vote, at least 40 States allow juries smaller than 12 in

some types of criminal cases. In short, overturning

Apodaca has little to recommend it but could have

serious negative consequences for both the criminal

justice system and this Court’s jurisprudence. The

decision below should be affirmed.

11

ARGUMENT

I.

THE SIXTH AMENDMENT’S JURY TRIAL CLAUSE

DOES NOT REQUIRE UNANIMITY.

Ramos argues that the Sixth Amendment requires

a unanimous jury verdict to convict based on the “the

history and purpose of the Jury Trial Clause.” Pet. Br.

18. That is incorrect. The Constitution’s text, structure,

history, and purpose show that unanimity is “not a

necessary ingredient of ‘trial by jury.’” Williams, 399

U.S. at 86.

A. A “Trial By Jury” Under the Sixth

Amendment Does Not Require Every

Feature of the Common Law Jury.

1. The judicial inquiry must “start with the text” of

the Constitution. Gamble, 139 S. Ct. at 1965. The

Constitution references the right to a jury trial in three

places:

! Article III provides: “The trial of all crimes, except

in cases of impeachment, shall be by jury; and such

trial shall be held in the state where the said crimes

shall have been committed; but when not committed

within any state, the trial shall be at such place or

places as the Congress may by law have directed.”

! The Sixth Amendment provides: “In all criminal

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

an impartial jury of the State and district wherein

the crime shall have been committed, which district

shall have been previously ascertained by law . . . .”

12

! The Seventh Amendment provides: “In suits at

common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any court of the United

States, than according to the rules of the common

law.”

Nothing in the Constitution’s text, then, indicates

that a “trial by jury” means a unanimous guilty verdict

is necessary to convict the accused. “The Constitution

does not mention unanimous juries.” Johnson v.

Louisiana, 406 U.S. 380, 381 (1972) (Douglas, J.,

dissenting). The Court should always hesitate before

creating a right that is not anchored in the

Constitution’s text.

To his credit, Ramos does not attempt to argue that

the Constitution expressly creates a right to a

unanimous jury. He instead claims that the right to

unanimity is implicit in the Sixth Amendment. It is

less clear, however, why Ramos holds that view. At

times, he appears to argue that a “trial by jury”

necessarily requires unanimity simply because that is

what the common law would have required at the

Founding. See Pet. Br. 20-22. If that is Ramos’s

argument, it is mistaken. Although the common law

required juries to consist of twelve members, this Court

refused to import that requirement into the Sixth

Amendment, rejecting “the easy assumption . . . that if

a given feature existed in a jury at common law in

1789, then it was necessarily preserved in the

Constitution.” Williams, 399 U.S. at 92.

13

For good reason. The Constitution’s structure

confirms that not “every feature of the jury as it existed

at common law—whether incidental or essential to that

institution—was necessarily included in the

Constitution wherever that document referred to a

‘jury.’” Id. at 91. At common law, a jury trial required

far more than unanimity. It required “the size of that

body to be generally fixed at 12,” id. at 87, the trial be

held in the “vicinage” where the crime occurred, id. at

96, and limited the jury pool to male “freeholders” (i.e.,

property owners), see 4 William Blackstone,

Commentaries on the Laws of England *344 (1769). Yet

Ramos does not suggest each of these common-law

features is essential to a “trial by jury” under the

Constitution.

If every common-law feature of a jury trial

(including unanimity) were required, moreover,

logically it would be Article III—not the Sixth

Amendment—that safeguarded those rights. It is

Article III, after all, that creates a federal right to a

jury trial. Yet Ramos barely mentions Article III, let

alone develops an argument that it swept in every

feature of a common-law jury. That is a warning sign.

It would be “strange” if the Constitution used “the

same words” in two places yet the second reference had

an implicit meaning the first did not. Bucklew v.

Precythe, 139 S. Ct. 1112, 1127-28 (2019).

The Court does not need to venture beyond the text

to discern the relationship between Article III and the

Sixth Amendment. As noted above, Article III requires

a jury trial “to be held in the state” where the crime

was committed. The Sixth Amendment was needed,

14

therefore, to “guarantee a right to a trial within the

district of the crime” because “Article III had not

specified jury trial of ‘the vicinage,’ as per the

prevailing common law.” Akhil Reed Amar, The Bill of

Rights as a Constitution, 100 Yale L.J. 1131, 1197

(1992) (emphasis added).1

The textual differences between the Sixth and

Seventh Amendments bolster the conclusion that the

former does not require every common-law feature of a

jury. Unlike its neighbor, the Seventh Amendment

expressly references the “common law” twice; first, in

describing the cases covered by the amendment and,

second, in requiring that “no fact tried by a jury, shall

be otherwise reexamined in any court of the United

States, than according to the rules of the common law.”

The drafters of the Bill of Rights thus “knew how” to

incorporate common-law rules when they so desired.

Sveen v. Melin, 138 S. Ct. 1815, 1826 (2018) (Gorsuch,

J., dissenting). That they did so in the Seventh

Amendment, which likewise requires jury trials, is

1

In passing, Ramos claims “[t]he Sixth Amendment’s codification

of the common-law conception of trial by jury accords” with Article

III. Pet. Br. 21 n.8 (citing Callan v. Wilson, 127 U.S. 540, 549-50

(1888)). As explained, though, the issue here is not whether the

Sixth Amendment accords with Article III. If the words “trial by

jury” required all common-law features, the Sixth Amendment

would not have needed to confront the vicinage issue because the

right would have already been secured by Article III. Any

suggestion that Callan held otherwise would be misplaced. Like

many decisions predating Williams, see infra at 40-41, the Court

assumed that Article III wholesale incorporated the common law

in a case that did not require it to decide that issue. See Callan,

127 U.S. at 547-57 (holding that the appellant had been charged

with a “crime” and that the Sixth Amendment applied in the

District of Columbia).

15

especially telling. See Williams, 399 U.S. at 97 & n.44

(citing Capital Traction Co. v. Hof, 174 U.S. 1, 5-8

(1899)).

2. It also would have been news to those who

drafted and ratified the Constitution that codifying the

right to a “trial by jury” in Article III was enough to

impose every common-law feature. “With respect to the

jury trial in particular, while most of the colonies

adopted the institution in its English form at an early

date, more than one appears to have accepted the

institution at various stages only with ‘various

modifications.’” Id. at 98 n.45 (quoting Reinsch, The

English Common Law in the Early American Colonies,

in 1 Select Essays in Anglo-American Legal History

367, 412 (1907)).

Unsurprisingly, this led to notable variation in the

State constitutions that were adopted in the aftermath

of our separation from England. Some State

constitutions, for example, expressly incorporated the

common law. See New York Constitution of 1777, Art.

XLI (“[T]rial by jury, in all cases in which it hath

heretofore been used in the colony of New York, shall

be established and remain inviolate”); New Jersey

Constitution of 1776, Art. XXII (“[T]he common law of

England . . . shall still remain in force . . . [and] the

inestimable right of trial by jury shall remain

confirmed as a part of the law of this Colony.”).

Others expressly imposed a unanimity requirement.

See Delaware Declaration of Rights of 1776, §14

(requiring “unanimous consent” of “an impartial jury”).

Maryland Constitution of 1776, Art. XIX (“unanimous

consent” of “an impartial jury”); North Carolina

16

Constitution of 1776, Art. IX (“unanimous verdict of a

jury of good and lawful men”); Pennsylvania

Constitution of 1776, Art. IX (“unanimous consent” of

“an impartial jury of the country”); Vermont

Constitution of 1778, Art. X (“unanimous consent” of

“an impartial jury of the country”); Virginia

Constitution of 1776, Bill of Rights, §8 (“speedy trial by

an impartial jury of twelve men of his vicinage, without

whose unanimous consent he cannot be found guilty”).

Still others referenced neither the common law nor

unanimity. See Massachusetts Constitution of 1780,

Art. XII (“And the legislature shall not make any law

that shall subject any person to a capital or infamous

punishment . . . without trial by jury.”); Georgia

Constitution of 1777, Art. LXI (“Freedom of the press

and trial by jury to remain inviolate forever.”).2

In sum, although unanimity was the general rule at

the time of the Founding, there were significant

differences in how the States addressed the jury right

in their constitutions, with at least six States adopting

an explicit unanimity requirement. Of course, such

2

Louisiana’s first constitution was ratified in 1812 and

incorporated language originating from the Acts of Congress

related to the Territory preceding its admission as a State. None

of these Acts required unanimity. See Act of Congress March 26,

1804, c. 38, 2 U.S. Stat. 283 (“…trial shall be by a jury of twelve

good an lawful men of the vicinage…”); Act of Congress March 3,

1805, c. 23, 2 U.S. Stat 322 (same); Act of Congress March 3, 1805,

c. 31, 2 U.S. Stat. 331 (same); Act of Congress Feb. 20, 1811, c. 21,

2 U.S. Stat. 641, Enabling Act, (republican constitution shall be

formed “consistent with the constitution of the United States;

…that it shall secure to the citizen the trial by jury in all criminal

cases...”).

17

differences are tough to explain if, as Ramos argues, a

“‘trial by jury’ necessarily required a unanimous

verdict.” Pet. Br. 19. True, “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.” Apodaca, 406 U.S. at 408 n.3

(plurality op.). But what matters is that Founding-era

practice contradicts the notion that the Framers

expected the words “trial by jury” in any constitution

(state or federal), without more, to automatically

trigger a unanimity requirement. When those who

framed and ratified the Constitution wanted to

enshrine unanimity as a constitutional guarantee, the

law expressly so provided.

The Sixth Amendment’s framing history eliminates

all doubt. As this Court has recounted:

pending and after the adoption of the

Constitution, fears were expressed that Article

III’s provision failed to preserve the common-law

right to be tried by a ‘jury of the vicinage.’ That

concern, as well as the concern to preserve the

right to jury in civil as well as criminal cases,

furnished part of the impetus for introducing

amendments to the Constitution that ultimately

resulted in the jury trial provisions of the Sixth

and Seventh Amendments.

Williams, 399 U.S. at 93-94.

James Madison, who was then a member of the

House of Representatives, introduced the first draft of

what would become the Sixth Amendment. It provided:

18

“The trial of all crimes . . . shall be by an impartial jury

of freeholders . . . of the vicinage, with the requisite of

unanimity for conviction, of the right of challenge, and

other accustomed requisites.” Id. at 94. The proposal

passed the House but met resistance in the Senate. See

id. at 95-96. “The version that finally emerged from the

[Conference] Committee was the version that

ultimately became the Sixth Amendment . . . . Gone

were the provisions spelling out such common-law

features of the jury as ‘unanimity,’ or ‘the accustomed

requisites.’ And the ‘vicinage’ requirement itself had

been replaced by wording that reflected a compromise

between broad and narrow definitions of that term, and

that left Congress the power to determine the actual

size of the ‘vicinage’ by its creation of judicial districts.”

Id. at 96 (emphasis added).

This framing evidence confirms what the

Constitution’s text and structure already make clear.

First, “the mere reference to ‘trial by jury’ in Article

III” did not sweep in every common-law feature. Id.

Indeed, “even though the vicinage requirement was as

much a feature of the common-law jury as was the 12man requirement . . . Article III was not interpreted to

include that feature.” Id. at 96. Second, the removal of

“provisions that would have explicitly tied the ‘jury’

concept to the ‘accustomed requisites’ of the time”

underscores that the Framers understood the common

law had not been adopted wholesale by the Sixth

Amendment. Id. at 96-97. And, third, “contemporary

legislative and constitutional provisions indicate that

where Congress wanted to leave no doubt that it was

incorporating existing common-law features of the jury

19

system, it knew how to use express language to that

effect.” Id. at 97.

This is not inappropriate reliance on drafting

history. See Pet. Br. 22-23. Here, the framing evidence

illuminates the compromises reached in adopting and

amending the Constitution. See Haywood v. Drown,

556 U.S. 729, 743-48 (2009) (Thomas, J., dissenting).

This evidence helps show why Ramos’s argument that

the Sixth Amendment “constitutionalized” the common

law of jury trials, Pet. Br. 20, is so misplaced: it “would

have come as a surprise to those who penned and

ratified the Constitution.” Comptroller of Treasury of

Md. v. Wynne, 135 S. Ct. 1787, 1812 (2015) (Thomas, J.

dissenting). That is why Williams firmly rejected the

same argument nearly fifty years ago.

In short, the Apodaca plurality correctly applied

settled law in concluding that the Sixth Amendment

does not mandate unanimity. Whether “the Framers

codified [the] common-law understanding in the Sixth

Amendment” was not up for debate. Pet. Br. 13.

Williams had already held that the Sixth Amendment

inquiry does not turn on whether a “‘given feature

existed in a jury at common law in 1789.’” Apodaca 406

U.S. at 409 (quoting Williams, 399 U.S. at 92-93). The

issue in Apodaca was whether unanimity, “a feature

commonly associated with” the common law, “is

constitutionally required.” Id. at 410. Unless the Court

is willing to overturn Williams, that is also the issue

here, and the answer should be the same.

20

B. A Unanimous Verdict Is Not an

Indispensable Component of a “Trial By

Jury.”

Ramos argues, in the alternative, that the “Jury

Trial Clause guarantees the integral components of the

common-law right” and that unanimity is a “critical

component of the common-law right to trial by jury.”

Pet. Br. 24. But that, too, misstates this Court’s

approach. The question is not just whether a feature

was required at common law, but whether it is an

“indispensable component of the Sixth Amendment”

based on “the function that the particular feature

performs and its relation to the purposes of the jury

trial.” Williams, 399 U.S. at 99-100. Ramos fails to

show that unanimity was “indispensable” to the

function of the jury.

1. There is inadequate historical

support for unanimity being

indispensable to a jury trial.

Ramos proclaims that unanimity is “‘mandated by

history.’” Pet. Br. 18-19 (quoting Johnson, 406 U.S. at

370 (Powell, J., concurring in the judgment)). That is

incorrect. He cannot show that, at common law,

unanimity was any more important than other features

of a jury—like the 12-man and freeholder

requirements—that were likewise standard practice at

the time but were never imported into Article III or the

Sixth Amendment. See Williams, 399 U.S. at 102-03.

Blackstone: Ramos points first to Blackstone, who

indeed said that “the protection against conviction

absent the ‘unanimous consent’ of the jury ‘is the most

21

transcendent privilege which any subject can enjoy, or

wish for.’” Pet. Br. 24-25 (quoting 3 Blackstone,

Commentaries *379). But the full sentence from the

passage Ramos selectively quotes paints a different

picture. Blackstone wrote that “trial by jury” itself—not

the unanimity requirement specifically—is “the most

transcendent privilege which any subject can enjoy”

because no person can “be affected in his property, his

liberty, or his person, but by the unanimous consent of

twelve of his neighbours and equals.” 3 Blackstone,

Commentaries *379.

In Blackstone’s discussions of trial by jury,

unanimity is featured no more prominently than any

other common-law features of the jury. He described

the jury as “a tribunal composed of twelve good men

and true, ‘boni [h]omines,’ usually the vasals or tenants

of the lord, being the equals or peers of the parties

litigant.” 3 Blackstone, Commentaries *349. He also

characterized the jury as composed of “twelve free and

lawful men . . . of the body of [the] county, by whom the

truth of the matter may be better known . . . .” Id. at

*352. The jury, he explained, formed the “principal

bulwark of [English] liberties” because “no freeman

[could] be hurt in either his person or property,” except

by lawful judgment of his peers or equals, or by the law

of the land. Id. at *350. Blackstone also identified

indictment by grand jury as a critical protection for

defendants: “the founders of the English laws have

with excellent forecast contrived, that no man should

be called to answer to the king for any capital crime,

unless upon the preparatory accusation of twelve or

more of his fellow subjects, the grand jury . . . .” 4

Blackstone, Commentaries *343.

22

In fact, Blackstone downplayed the importance of

the unanimity requirement as compared to the other

features of the common-law jury tradition. For

example, he described the requirement that the jury be

composed of “twelve good men” as having roots in “the

laws of all those nations which adopted the fe[u]dal

system.” 3 Blackstone, Commentaries *349. By

contrast, he described the “necessity of a total

unanimity” as “peculiar to [the English] constitution.”

Id. at *376. He noted that “in the nembda or jury of the

an[c]ient Goths, there was required (even in criminal

cases) only the consent of the major part, and in case of

an equality, the defendant was held to be acquitted.”

Id.

Founding-Era Sources: Ramos fails to buttress

his case with other Founding-era sources, see Pet. Br.

24-25, as most of those authorities mention unanimity

only in passing or have been taken out of context.

John Adams, according to Ramos, “declared that the

jury unanimity requirement ‘preserves the rights of

mankind.’” Pet. Br. 24. But the quotation ignores the

context. In this letter, Adams criticizes the idea of

vesting a single assembly with all legislative, executive,

and judicial power. See 1 John Adams, A Defence of the

Constitutions of Government of the United States of

America 372 (1794). It is in this context that Adams

discusses the jury, but it is a stray remark made

seemingly with the purpose of showing the absurdity of

the proposal:

Shall every criminal be brought before this

assembly and tried? Shall he be there accused

before five hundred men? Witnesses introduced,

23

counsel heard? This again would take up more

than the whole year and no man, after all, would

consider his life, liberty or property, safe in such

a tribunal. These all depend upon the

disquisitions of the counsel, the knowledge of the

law in the judges, the confrontation of parties

and witnesses, the forms of proceedings, by

which the facts and the law are fairly stated

before the jury for their decision . . . . An

assembly of five hundred men are totally

incapable of this order, as well as knowledge;

for, as the vote of the majority must determine,

every member must be capable, or all is

uncertain; besides, it is the unanimity of the jury

that preserves the rights of mankind—must the

whole five hundred be unanimous?”

Id. at 376 (emphasis added). Though Adams discusses

the proposal at length, he does not mention unanimity

again.

Ramos also cites Matthew Hale’s treatise for the

proposition that “leading Founding-era treatises and

scholars all agreed that ‘trial by jury’ necessarily

required a unanimous verdict.” Pet. Br. 19. But the

cited passage is from a chapter titled “Concerning the

defect of idiocy, madness and lunacy, in reference to

criminal offenses and punishments.” In the relevant

excerpt, Hale discusses the difficulty of trying an

individual who was incapacitated at the time he

committed the crime (by “drunkenness” or “an habitual

or fixed phrenzy”). 1 Matthew Hale, The History of the

Pleas of the Crown 32 (1736). Hale explains that

bringing such a person to judgment is difficult due to

24

the “easiness of counterfeiting the disability” and

because of the “variety of the degrees of this infirmity,

whereof some are sufficient, and some are insufficient

to excuse persons in capital offenses.” Id. at 32-33.

It is in this context that Hale brings up trial by jury,

stating that, despite the difficulty in conducting such a

trial: “the law of England hath afforded the best

method of trial, that is possible, of this and all other

matters of fact, namely by a jury of twelve men all

concurring in the same judgment, by the testimony of

witnesses viva voce in the presence of the judge and

jury, and by the inspection and direction of the judge.”

Id. at 33. He says nothing more on the matter. His

comment regarding unanimity is merely one brief

reference within his general praise of the English jury

system. Hale then moves on to the specifics of “trials of

idiocy, madness, or lunacy.” Id.3

3

Ramos’s reliance on more recent treatises discussing the

Founding-era evidence is likewise misplaced. Ramos cites Douglas

Smith for the proposition that the “unanimity requirement was

established in 1367 and became the norm in England during the

fifteenth century.” Pet. Br. 19. But Smith does not address the

question at issue here: whether this common-law right was

implicitly mandated by Article III or the Sixth Amendment. For its

part, the Langbein treatise, see Pet. Br. 19-20, devotes a mere

three sentences to discussion of unanimity, stating that, at

common law: “The twelve jurors had to agree upon their verdict in

order to convict. In theory, if they disagreed a so-called mistrial

resulted and a new trial would be held before another jury at

another session. In practice, we have almost no evidence of such

cases. The pressure for agreement must have been strongly felt in

a system that processed such large trial caseloads so rapidly.”

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).

25

Post-Founding Sources: Ramos’s post-Founding

sources are no more helpful to his position. See Pet. Br.

25-27. According to Ramos, Justice Story “considered

the issue in his ‘famous Commentaries’ and concluded

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.’” Id. at 26 (quoting 2 Joseph Story, Commentaries

on the Constitution of the United States § 1779 (1891)

(cleaned up). That is correct, except for one thing: Story

did not say any of this.

To be sure, this language appears in a footnote in

the fifth edition of the Commentaries, which Ramos

correctly cites. But it appears nowhere in the first

edition (1833) or the second (1851). In fact, the passage

first appears in the third edition of the Story

Commentaries, published in 1858—thirteen years after

Story’s death—and the quoted language appears in

brackets to indicate that it was an insertion by the

editor. See 2 Story, Commentaries §1779 (3d ed. 1858).

To make clear which text was Story’s and which was

his own, the editor helpfully included a note explaining

his method, writing that “[n]o change has been made in

the original text, and all the additions by the editor are

included within brackets, so that the reader may not

give the weight of the author’s judgment to any

passages not written by him.” Id. at iii. Taking the

editor at his own word, there is no reason to give his

26

insertions the weight afforded Justice Story’s original

commentary.4

Regardless, the full passage is not as helpful to

Ramos as the fragment he quotes. The full passage

states: “[A] trial by jury is generally understood to

mean ex vi termini, a trial by a jury of twelve men,

impartially selected, who must unanimously concur in

the guilt of the accused before a legal conviction can be

had. Any law, therefore, dispensing with any of these

requisites, may be considered unconstitutional.” 2

Story, Commentaries §1779 (1891). Unanimity and the

12-man requirement were therefore deemed equally

important to the 19th-century understanding of the

jury trial, at least according to this editor. Certainly

nothing in the passage suggests that unanimity was

any more essential than the 12-man requirement,

which, again, has never been deemed a mandatory

component of Article III or the Sixth Amendment. See

Williams, 399 U.S. at 102-03.

Ramos also points to “Nathan Dane’s oft-cited 1824

treatise,” which “observed that the Constitution

demanded that ‘the jury in criminal matters must be

unanimous.’” Pet. Br. 26 (quoting 6 Nathan Dane, A

General Abridgment and Digest of American Law 226

(1824)). However, the Dane treatise makes this

statement merely in passing. Here is the full quote:

4

It is easy to see how this oversight occurred—the fifth edition

includes the relevant passage without brackets, so there is no way

to know that it was not part of the original text. Likewise in the

fourth edition. Indeed, Ramos is not the first one to make this

error—it appears as though Justice Douglas did the same in his

dissenting opinion in Johnson. See 406 U.S. at 382 n.1 (Douglas,

J. dissenting).

27

§1. By the constitution of the United States,

article 3, section 2, ‘the trial of all crimes, except

in cases of impeachment, shall be by jury;” and

by the 12th article of amendments to the said

constitution, it is provided: ‘In all suits at

common law, the right of trial by jury shall be

preserved;’ and in the 11th article of said

amendments, it is provided, that not ‘any fact

triable by a jury according to the course of the

common law shall be otherwise examinable than

according to the rules of the common law.’ By

the 10th article of said amendments, the jury in

criminal matters must be unanimous.

Id. Dane seems, in this section, to be paraphrasing

what he believes the Sixth Amendment requires.

Whereas he directly quotes portions of Article III and

the Seventh Amendment, he offers no quote or

authority for the proposition that “the jury in criminal

matters must be unanimous.” Id. There is nothing

further in that section regarding unanimity or its

importance to the common-law jury trial.

When Dane discusses jury unanimity elsewhere in

the treatise, it is more of the same. In one instance, he

recites some points from Blackstone’s discussion of the

jury trial and notes, as Blackstone did, that an English

common-law jury “must be kept together without meat

or drink, till agreed . . . . They may propose questions

to the judge or judges; and may ask a witness a

question after retired from the bar; but this must be

done in open court: must in all cases be unanimous.”

Id. at 230. Dane provides nothing further on unanimity

in that section.

28

In sum, the Dane treatise merely notes that juries

at the time rendered their verdicts unanimously.

Missing, though, is any elaboration of why the

unanimity requirement matters, or why it is any more

essential a feature of the common-law jury than the 12man requirement (or, for that matter, the requirement

that the jury be kept without food and drink until they

render a verdict). As with the other 19th-century

treatises, all the Dane treatise shows is that, at

common law, the jury was required to reach a

unanimous verdict—a point not in dispute.

Ramos’s reliance on the Bishop treatise falls short

for similar reasons. See Pet. Br. 26. Ramos cites it for

the idea 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.’” Pet’r.Br.26 (quoting 1

Joel Prentiss Bishop, Commentaries on the Law of

Criminal Procedure §897 (1866)). But Bishop begins

with the importance of the 12-man requirement and

then merely equates the importance of unanimity to it.

As he explains:

From time immemorial a jury of trials has

consisted of twelve men. And it is a point upon

which the authorities agree, that, within the

meaning of our constitutional provisions, a jury

of less than twelve men is not a jury; and a

statute authorizing a jury of less, in a case in

which the constitution guarantees a jury trial, is

void. And the same consequence comes, it

appears, if the statute authorizes them to find a

29

verdict upon anything short of the unanimous

consent of the twelve jurors.

1 Joel Prentiss Bishop, Commentaries on the Law of

Criminal Procedure §762 (1866). If anything, therefore,

the Bishop treatise sees the 12-man requirement—a

feature since “time immemorial”—as even more

fundamental to the common-law jury-trial right than

unanimity.

The same goes for Ramos’s reliance on the views of

the First Justice Harlan, who held the view 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.’” Pet. Br. 26 (quoting Brian L. Frye,

et al., Lecture from March 12, 1898, in Justice John

Marshall Harlan: Lectures on Constitutional Law,

1897-98, 81 Geo. Wash. L. Rev. Arguendo 244, 252

(2013)). Before this passing reference to the unanimity

requirement, however, Harlan extensively discussed

the 12-man requirement. He said that an accused

“must be tried by a jury of twelve men, and not less

than twelve men,” and that “an act of Congress which

should provide for the trial of crimes in this District by

a jury composed of less than twelve people would be

void.” 81 Geo. Wash. L. Rev. Arguendo at 251. He

elaborated: “I believe that there is no feature of our

Anglo-Saxon civilization today that lies more nearly to

the liberty of man than the right of a trial by the oldfashioned jury composed of twelve honest men, and I

would not dispense with any feature of that system.”

Id. at 251-52. Concluding his discussion of the jury

trial, he noted: “I think that a unanimous verdict is

required under this Constitution in the Courts of the

30

United States.” Id. at 252. Though Harlan had opined

at length on the 12-man requirement, he did not

discuss the unanimity requirement any further in the

lecture.

In another lecture on April 23, 1898, Harlan again

discussed the common-law trial by jury and mentioned

the unanimity requirement only briefly, noting that “at

common law, and under the Constitution, it takes the

unanimous verdict of twelve men to convict a man of a

crime.” Id. at 318. The Harlan lecture, like the other

cited sources, fails to show that the common law

deemed unanimity any more important or fundamental

than the requirement of a 12-person jury that has

never been read into the Sixth Amendment. Ramos’s

historical evidence in support of the notion that the

Sixth Amendment incorporated all features of the

common-law jury wholesale is certainly no “better than

middling.” Gamble, 139 S. Ct. at 1969.

2. Louisiana law fulfills all of the

purposes animating the jury trial

requirement.

In deciding whether the Sixth Amendment

mandates a certain feature of the jury, the Court has

also considered the “function” it “performs and its

relation to the purposes of the jury trial.” Williams, 399

U.S. at 99-100. As explained, unanimity is no more

essential to “the great purposes which gave rise to the

jury in the first place,” id. at 89-90, than the common

law’s 12-man and freeholder components, see supra at

13. That leaves Ramos to argue that the “function

served by the jury in contemporary society” requires

unanimity. Apodaca, 406 U.S. at 410 (plurality op.)

31

(citation omitted); see Pet. Br. 27-33. Assuming that

this even has relevance to the constitutional inquiry,

but see Johnson, 406 U.S. at 366 (Blackmun, J.,

concurring), Ramos’s arguments miss the mark.

The “essential feature” of a jury trial “obviously lies

in the interposition between the accused and his

accuser of the commonsense judgment of a group of

laymen, and in the community participation and

shared responsibility that results from that group’s

determination of guilt or innocence.” Williams, 399

U.S. at 100; see also Duncan v. Louisiana, 391 U.S.

145, 156 (1968) (“Providing an accused with the right

to be tried by a jury of his peers gave him an

inestimable safeguard against the corrupt or

overzealous prosecutor and against the compliant,

biased, or eccentric judge.”). Unanimity is not essential

to those core purposes. Under Louisiana law, a body of

citizens will be appropriately interposed between the

prosecution and the defendant in every case, even if the

final vote is 11-1 or 10-2. Apodaca, 406 U.S. at 410-14

(plurality op.); see Johnson, 406 U.S. at 365-66

(Blackmun, J., concurring).

Allowing non-unanimous convictions also advances

other important interests. Most notably, eliminating

the requirement of unanimity will reduce the chance of

a hung jury. In their frequently cited study, “Kalven

and Zeisel noted that jurisdictions which allow

nonunanmious verdicts have forty-five percent fewer

hung juries than those that compel unanimity.”

Michael H. Glasser, Letting the Supermajority Rule:

Nonunanimous Verdicts in Criminal Trials, 24 Fla. St.

U. L. Rev. 659, 675 (1997); Jacob Tanzer,

32

Nonunanimous Verdicts in Criminal Cases: The Oregon

Experience, 14 Judges J. 4, 6 (1975) (“The Chicago Jury

Study reported that the mistrial rate from hung juries

is 5.6 percent in unanimous-verdict states and 3.1

percent in majority-verdict states.”).

Reducing the number of hung juries—and, in turn,

mistrials—is a legitimate government purpose. Hung

juries impose significant costs on the court system, the

parties, and the local community more broadly. They

delay the final disposition of the charges, leaving both

the defendant and the victim in limbo. They also

require a subsequent retrial, which burdens the

judiciary with duplicative work even as evidence may

be lost and witnesses’ memories fade. “When a jury is

unable to reach [a unanimous] verdict,” in short, “a

mistrial wastes both time and resources and further

debilitates faith in the judicial system.” Jere W.

Morehead, A ‘Modest’ Proposal for Jury Reform: The

Elimination of Required Unanimous Jury Verdicts, 46

U. Kan. L. Rev. 933, 935 (1998) (footnote omitted).

Recognizing the importance of these policy concerns,

numerous other countries that employ a jury

system—even those that share our common-law

heritage—allow juries to return non-unanimous

verdicts. In fact, “among the class of countries that

embraces the jury, the unanimous decision rule for

guilt and acquittal generally enforced by the American

system is very much an anomaly.” Ethan J. Lieb, A

Comparison of Criminal Jury Decision Rules in

Democratic Countries, 5 Ohio St. J. Crim. L. 629, 642

(2008). “Although Canada and some jurisdictions in

Australia maintain unanimity as a requirement (for

33

conviction and acquittal),” this is far from the majority

rule; instead, “more relaxed majoritarian and

supermajoritarian rules clearly dominate the global

jury system landscape.” Id. at 642. “Avoiding hung

juries seems to be a priority among the world jury

systems and very few world jury systems allow for

them.” Id.

Notably, England no longer requires juries to render

verdicts unanimously. “In England . . . the requirement

of a unanimous verdict was dropped in 1967 by the

Criminal Justice Act, which permitted verdicts of ten

to two.” Sally Lloyd-Bostock & Cheryl Thomas, Decline

of the “Little Parliament”: Juries and Jury Reform in

England and Wales, 62-SPG Law & Contemp. Probs. 7,

36 (1999). Ireland likewise has no unanimity

requirement. Echoing Williams and Duncan, the

Supreme Court of Ireland has persuasively explained

that, “[t]he essential feature of a jury trial is to

interpose, between the accused and the prosecution,

people who will bring their experience and

commonsense to bear on resolving the issue of the guilt

or innocence of the accused.” O’Callaghan v. Attorney

General, [1993] 2 I.R. 17, 26. “A requirement of

unanimity is not essential to this purpose.” Id.

Ramos correctly notes that a core purpose of the

jury is “checking prosecutorial power” and serving as a

“bulwark” against the state. Pet. Br. 28. But, as noted

above, a jury serves as an important independent check

on prosecutorial power regardless of whether the final

vote is 12-0, 11-1, or 10-2. In all cases, a body of

disinterested and impartial citizens has been

interposed between the prosecution and the defendant.

34

And, so long as the court properly instructs the jury

about the burden of proof for returning a conviction

(which Ramos does not dispute happened here), it is

baseless to suggest that a less-than-unanimous vote

will lighten the prosecution’s “burden of persuasion.”

Pet. Br. 28.

Ramos is also wrong to suggest that mandatory

unanimity is needed to ensure “effective deliberation.”

Pet. Br. 28-30. In some circumstances—such as the

(fictional) Twelve Angry Men deliberation, see id. at

30—unanimity might promote better deliberation by

ensuring that the majority considers and responds to

the reasonable concerns of a holdout. In many other

situations, though, a unanimity requirement will

degrade the quality of jury deliberations and instead

will promote delay, frustration, and gridlock. Even

under the old version of Louisiana’s law—which

allowed convictions by a 9-3 vote rather than the

current 10-2 minimum, this Court explained that the

“mere fact that three jurors voted to acquit does not in

itself demonstrate that, had the nine jurors of the

majority attended further to reason and the evidence,

all or one of them would have developed a reasonable

doubt about guilt.” Johnson, 406 U.S. at 361. This

Court found “no grounds for believing” that jurors in

the majority would “simply refuse to listen” to

reasonable arguments in support of acquittal. Id. But

when a holdout juror “continues to insist upon acquittal

without having persuasive reasons in support of [his]

position,” then “there is no basis for denigrating the

vote of so large a majority of the jury or for refusing to

accept their decision . . . as being beyond a reasonable

doubt.” Id.

35

As Akil Amar has put it: “unanimity cannot

guarantee mutual tolerance,” especially where there is

an “eccentric holdout who refuses to listen to, or even

try to persuade, others (‘you can’t make me, so there!’).”

Akhil Reed Amar, Reinventing Juries: Ten Suggested

Reforms, 28 U.C. Davis L. Rev. 1169, 1191 (1995). The

holdout juror may be noble and a vessel for justice. But

it is equally likely that he may be motivated by an

irrational interpretation of the evidence, an improper

bias for or against the prosecution or defendant, or a

desire to nullify the charges notwithstanding

compelling evidence of guilt. Maybe this juror is

refusing to convict because the prosecutor seemed

“mean” or the defense attorney seemed “nice.” Or

perhaps he refuses to believe a key eyewitness from

Smithtown because “everyone knows that people from

Smithtown are no-good liars.” Or maybe he distrusts

science and thus disregards overwhelming ballistics or

DNA evidence.

The people, through their legislatures, of course

may decide that these costs are outweighed by the

defendant-friendly benefits of requiring unanimity. But

it would impose a considerable federalism harm to

override Louisiana’s policy judgment that one or two

jurors should not have the power to hijack the

proceeding and block a conviction based on irrational,

idiosyncratic, or irrelevant considerations.

In arguing that unanimity is needed to ensure

effective deliberations, Ramos relies heavily on

Blueford v. Arkansas, 566 U.S. 599 (2012). See Pet. Br.

29. In that case, the Court held that double jeopardy

did not attach to an oral report from the foreperson to

36

the judge during deliberations stating that the jury had

unanimously voted against a finding of capital murder.

This Court concluded that the mid-deliberation report

was “not a final resolution of anything” because “[t]he

jurors in fact went back to the jury room to deliberate

further, even after the foreperson had delivered her

report,” and were “free to reconsider a greater offense.”

Id. at 606-07. Blueford stands for the unremarkable

proposition that a jury speaks only through its final

verdict—not through any tentative or preliminary

votes—and that the jury must continue to deliberate

until it reaches its final verdict (or hangs). But nothing

in that decision opines on whether jury deliberations in

that case (or any other) would have been more effective

under a unanimity or non-unanimity rule.

Finally, Ramos argues that Louisiana’s rule was

racially motivated and would “prevent members of

racial minorities from serving and expressing their

views.” Pet. Br. 30-33. Those arguments fail on several

levels. To begin, Ramos did not bring an equalprotection claim to this Court; indeed, the record in this

case does not even disclose the racial composition of the

jury’s vote. This would accordingly be a poor case for

the Court to opine on the alleged racial implications of

Louisiana’s law.5

Ramos notes that the non-unanimity policy was

originally enacted in Louisiana’s 1898 Constitution.

5

Moreover, the most recent revision to Louisiana’s Constitution

eliminated the non-unanimity rule but did not make that change

retroactive. See infra at 39. There is absolutely no evidence that

this pro-defendant decision was racially motivated. Accord Johnson

v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005).

37

Pet. Br. 31. Several provisions of that constitution

(including its imposition of grandfather clauses, poll

taxes, and literacy tests) were the unfortunate product

of racial animus. But there is no indication from the

historical record that the non-unanimity rule was as

well. One contemporaneous reporter—who was quite

candid about the explicit racial motivation of the voting

provisions—noted that the 1898 judiciary reforms were

“directed toward making the system less expensive

both to the public and to the litigant, while at the same

time improving its efficiency.” Thomas J. Kernan, The

Constitutional Convention of 1898 and Its Work,

Proceedings of the La. B. Ass’n 54, 63 (1898-99). The

purpose of the judiciary reforms was to “lay down

certain broad lines of judicial procedure that would

insure the economical and expeditious administration

of justice both civil and criminal.” Id.

In fact, an 1877 treatise described an ongoing

debate on the subject. See John Proffatt, A Treatise on

Trial by Jury §§78-79 (1877). “Whatever general

acquiescence,” the “rule requiring unanimity in the

verdict” had obtained “in former times,” Proffatt noted

that it was “quite evident that many able writers and

investigators . . . question the expediency and

reasonableness of the rule, and condemn it as

impracticable and an impediment to a due

administration of justice.” Id. §78. He recited a number

of reasons 19th-century thinkers had criticized the

rule: “in the majority of cases the unanimity is unreal,

and is only obtained as a compromise”; a “corrupt or

stupid juror may obstinately or willfully hold out, and

compel a disagreement, and a consequent failure of

justice”; it is “practicably and obviously impossible, in

38

a large number of cases, to impress twelve men with

exactly the same view of a state of contested facts”; and

“this method of decision is entirely singular and

anomalous” because “in all deliberative bodies, in

courts, in legislative assemblies, a decision of a

majority is accepted.” Id. §79. Proffatt, himself,

ultimately sided with those favoring unanimity. See id.

But the suggestion that Louisiana’s decision in 1898 to

make a different policy choice must have been the

product of racial animus is wrong.

In all events, “history did not end” in 1898, Shelby

County v. Holder, 570 U.S. 529, 552 (2013), and the

1898 Constitution’s non-unanimity provision was

amended and updated in 1913, 1921, and 1974. Over

that span, there was considerable public debate about

this issue. The American Law Institute’s Model Code of

Criminal Procedure, published in 1930, and Orfield’s

treatise on criminal law, published in 1947, both

recommended abolishing the requirement of unanimity

and reducing the size of juries. See Dale E. Bennett,

Louisiana Criminal Procedure—A Critical Appraisal,

14 La. L. Rev. 11, 27 & nn. 67-68 (1953) (discussing

recent commentary regarding unanimity). The Records

of the Louisiana Law Institute in the 1940s and 1950s

similarly reflect a continuous review of criminal law

and procedure, including jury size and voting rules. Id.

at 27 & n. 66. The Law Institute ultimately

recommended that “the quasi-felony should be tried by

an eight-man jury with six concurring in any verdict,”

so as to “eliminate many of the presently large number

of mistrials.” Id. at 27.

39

Louisiana’s 1974 Constitution further revised the

rule in a defendant-friendly direction by requiring

convictions by a minimum vote of 10-2 (rather than 93). This change “was the subject of a fair amount of

debate” at the constitutional convention, and “[i]n that

debate no mention was made of race.” State v. Hankton,

2012-0375 (La. App. 4 Cir. 2013) 122 So.3d 1028, 1038.

The rule’s “stated purpose” was “judicial efficiency.” Id.

Nor was there any “objectionable appeal on the basis of

race” to the voters during the campaign urging the

adoption of the 1974 Constitution. Id.

So too in 2018. After another exhaustive public

debate, the people of Louisiana again amended their

Constitution in a defendant-friendly direction by

requiring unanimity for offenses committed after

January 1, 2019. See 2018 La. Reg. Sess., Act 722. The

measure passed by a 64-36% margin. Ramos does

not—and cannot—even suggest that this significant

pro-defendant change to the Louisiana Constitution

was somehow the product of racial animus.6

6

Ramos relies on State v. Maxie, No. 13-CR-72522 (La. 11th Jud.

Dist. Oct. 11, 2018), which held that Louisiana’s non-unanimity

rule violates the Equal Protection Clause, Pet. Br. 31-32. Ramos

oddly suggests that he is invoking Maxie “only for its factual

findings, not any legal conclusions.” Id. at 3 n.1. But the

unpublished trial-court decision in Maxie should carry no weight

for any purpose, legal or factual. In Louisiana, a trial court ruling

has no precedential value even in the same court. See Shreveport

v. Baylock, 107 So. 2d 419, 422 (La. 1958). Nor is the record in that

case an appropriate subject of judicial notice by a federal court.

See Fed. R. Evid. 201(b) (facts may be judicially noticed only if

they are “not subject to reasonable dispute” and are drawn from

“sources whose accuracy cannot reasonably be questioned”).

40

3. A unanimity rule is not ingrained in

this Court’s Sixth Amendment

precedent.

Ramos is also wrong to assert that “this Court has

repeatedly held that the Sixth Amendment’s Jury Trial

Clause requires unanimous verdicts in criminal trials.”

Pet. Br. 16. If that were true, there would have been no

reason for the Court in Williams to express “no view

whether or not the requirement of unanimity is an

indispensable element of the Sixth Amendment jury

trial.” 399 U.S. at 100 n.46. The Court said that in 1970

because, in fact, the issue had not yet been decided. See

Apodaca, 406 U.S. at 406-09.

None of the pre-Apodaca decisions cited by Ramos

directly addressed whether the Sixth Amendment

required unanimity. American Publishing Company v.

Fisher, 166 U.S. 464 (1897), was a Seventh Amendment

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

addressed whether federal law required a jury in the

territory of Utah to consist of twelve members. Maxwell

v. Dow, 176 U.S. 581 (1900), and Patton v. United

States, 281 U.S. 276 (1930), were likewise cases

addressing whether the Constitution requires a jury to

consist of twelve members. The closest Ramos comes to

a relevant decision is Andres v. United States, 333 U.S.

Moreover, as Ramos concedes, the opinion was never subject to

appellate review because the case was mooted when Maxie

reached a plea agreement. Pet. Br. 3 n.1. More fundamentally, the

court’s analysis was largely based on newspaper reporting and

data sets that were produced and examined by unknown third

parties who did not testify in court and whose work could not be

independently verified. Maxie is irrelevant to the Court’s

disposition of this case.

41

740 (1948). Even there, however, the parties assumed

that the Sixth Amendment required the jury verdict to

be unanimous and confined their dispute to the proper

interpretation of a federal law governing capital

sentencing and the instructions given to the jury

concerning that statute. See id. at 746.

At most, these cases (or at least some of them)

address whether the Sixth Amendment incorporates

wholesale the common law of 1789—an issue that was

definitively settled before Apodaca. See supra at 12-19;

Williams 399 U.S. at 91-92. Several of these decisions

include statements suggesting the Sixth Amendment

requires unanimity. But none of them held that. See

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

judgment) (explaining that “these cases” had

“presumed that unanimous verdicts are essential in

federal jury trials”). In short, “the issue of unanimous

juries in criminal cases simply never arose.” Id. at 382

(Douglas, J., dissenting).

Ramos’s reliance on cases that postdate Apodaca is

equally misplaced. See Pet. Br. 17-18. Most of them

mention unanimity only in passing, referencing the

same line from Blackstone that Ramos has misread.

See, e.g., Blakely v. Washington, 542 U.S. 296, 301, 31314 (2004); United States v. Booker, 543 U.S. 220, 238-39

(2005); S. Union Co. v. United States, 567 U.S. 343, 356

(2012); Apprendi v. New Jersey, 530 U.S. 466, 477

(2000). Moreover, those decisions—which were

addressing distinct questions about what types of facts

must be tried to a jury—do not even cite Apodaca and

Johnson, much less evaluate whether they were rightly

decided. And in United States v. Gaudin, 515 U.S. 506,

42

510 (1995), the Court cited the Blackstone and Story

statements discussed above, before pointing to Apodaca

in a footnote for the proposition that “jury unanimity is

not constitutionally required,” id. 510 n.2.

Ramos also cites Richardson v. United States, 526

U.S. 813 (1999), which addressed whether a jury must

agree about which specific “violations” make up the

“continuing series” of violations under the federal

continuing criminal enterprise statute, 21 U.S.C. §848.

While addressing that issue, the Court noted that “a

jury in a federal criminal case cannot convict unless it

unanimously finds that the Government has proved

each element.” Id. at 817. The Court further noted,

however, that unanimity in federal trials is

independently required by Federal Rule of Criminal

Procedure 31(a). See id.; see infra at 50. Richardson

cited Johnson in passing, and did not discuss the Sixth

Amendment at all.7

Finally, McDonald v. Chicago, 561 U.S. 741, 766,

n.14 (2010), and Timbs v. Indiana, 139 S. Ct. 682, 687

n.1 (2019), merely summarized the Apodaca decision,

noting the “unusual division among the Justices.”

Neither McDonald nor Timbs addressed the Court’s

reasoning in those cases, and nothing in them turned

on whether the Sixth Amendment requires unanimity.

This Court’s post-Apodaca decisions, at bottom, offer no

7

In Descamps v. United States, 570 U.S. 254 (2013), the Court

stated that the Sixth Amendment requires unanimity, see id. at

269 (citing Richardson, 526 U.S. at 817). But the Court’s holding

did not turn on that issue. The Court did not even cite Apodaca or

Johnson—let alone substantively address those decisions.

43

more support for Ramos’s position than the earlier

cases.

II.

THE FOURTEENTH AMENDMENT DOES NOT

REQUIRE A UNANIMOUS JURY VERDICT TO

CONVICT.

Ramos offers various reasons why Louisiana’s rule

violates the Fourteenth Amendment. See Pet. Br. 3438. Each of these arguments is either misplaced,

undeveloped, or both. The Fourteenth Amendment does

not require unanimity.

Ramos first argues that “the Fourteenth

Amendment’s Due Process Clause ‘incorporates’ . . . the

Sixth Amendment’s unanimity requirement against the

states.” Id. 34 (quoting Timbs, 139 S. Ct. at 687). As

explained, however, his argument is built on a false

premise. The Sixth Amendment does not require

unanimity. Accordingly, there is nothing to incorporate.

Alternatively, Ramos argues for a “freestanding due

process right to unanimity” because it is “so rooted in

the traditions and conscience of our people to be ranked

as fundamental.” Pet. Br. 36-37 (quoting Medina v.

California, 505 U.S. 437, 445 (1992)). As an initial

matter, this argument is forfeited because it was not

pressed below. See 14 Penn Plaza LLC v. Pyett, 556

U.S. 247, 273 (2009). Nor was it raised in the certiorari

petition, which would have given Louisiana the

opportunity to lodge an objection to this “late-blooming

argument” in its brief in opposition. American Nat.

Bank and Trust Co. of Chicago v. Haroco, Inc., 473 U.S.

606, 608 (1985). And even in his merits brief, Ramos

treats the issue as afterthought, devoting barely a page

44

to it. The Court should “not decide this question based

on such scant argumentation.” Turner Broad. System,

Inc. v. FCC, 520 U.S. 180, 224 (1997).

Regardless, Ramos’s “freestanding” due process

argument is baseless. The Due Process Clause is not a

repository for an implied right to unanimity that

Ramos is unable to squeeze into the Sixth Amendment.

See Apodaca, 406 U.S. at 411-414 (plurality op.). The

Fifth and Fourteenth Amendments afford the same

due-process rights; the former “applies this limitation

to the Federal Government” while the latter “imposes

the same restriction on the States.” In re Winship, 397

U.S. 358, 378 n.3 (1970) (Black, J., dissenting). This

Court “has never held jury unanimity to be a requisite

of due process of law.” Johnson, 406 U.S. at 359;

Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) (“In

criminal cases due process of law is not denied by a

state law . . . which dispenses with the necessity of a

jury of twelve, or unanimity in the verdict.”).

That nearly every State, including Louisiana, has

since adopted a unanimity requirement, Pet. Br. 37,

underscores why the Court should not write it into the

Due Process Clause as a one-size-fits-all command.

“The elected governments of the States are actively

confronting” this issue; thus, to “suddenly

constitutionalize” a due-process right to a unanimous

verdict “would short-circuit what looks to be a prompt

and considered legislative response.” District Attorney’s

Office for Third Judicial Dist. v. Osborne, 557 U.S. 52,

72-73 (2009). Allowing a conviction by a 10-2 vote

simply is not “fundamentally unfair.” Kansas v. Carr,

45

136 S. Ct. 633, 644 (2016) (cleaned up); see Johnson,

406 U.S. at 360-63.8

Finally, and in passing, Ramos asserts that

unanimity is protected by the Fourteenth Amendment’s

Privileges or Immunities Clause. See Pet. Br. 37-38.

This newly-minted argument is not presented for the

same reasons as the freestanding due-process

argument. If anything, this issue is an even poorer

candidate for review given that the Clause protects

only “citizens of the United States,” U.S. Const. amend.

XIV, §1, and Ramos hedges on whether he is a citizen,

see Pet. Br. 38 n.13. Recognizing the barrier this raises,

he asks the Court—in the first instance—to hold that

Louisiana is violating the privileges or immunities of

“citizens of the United States,” U.S. Const. amend. XIV,

§1, and then to invalidate that law as to noncitizens on

severability or equal-protection grounds, Pet. Br. 38

n.13. Ramos’s suggestion that this Court should

address a basis for relief not pressed or passed on

below, not raised at the certiorari stage, barely briefed

on the merits, that may not apply to Ramos himself, in

order to then reach a novel remedial question that

itself has never been pressed or passed on is selfrefuting.

8

Whether a non-unanimous conviction by closer margins would

cross this constitutional line is a different question that is not

presented here. See Apodaca v. Oregon, 406 U.S. at 411 (plurality

op.); Johnson, 406 U.S. at 366 (Blackmun, J., concurring). The

Court has previously reviewed idiosyncratic unanimity issues

when warranted. See Burch v. Louisiana, 441 U.S. 130, 133-39

(1979). But given that 49 out of 50 States now require unanimity,

and Oregon requires a 10-2 vote to convict and is also considering

changes to its policy, the issue is unlikely to arise again in the

foreseeable future, if ever.

46

Regardless, the “privileges or immunities”

argument is not meritorious. Those willing to hear this

argument have, to this juncture, limited the Clause’s

reach to those “rights enumerated in the Constitution.”

McDonald, 561 U.S. at 853 (Thomas, J., concurring in

part and concurring in the judgment); Timbs, 139 S. Ct.

at 698 (Thomas, J., concurring in the judgment) (“As a

constitutionally enumerated right understood to be a

privilege of American citizenship, the Eighth

Amendment’s prohibition on excessive fines applies in

full to the States.”). Again, as explained, the right to a

unanimous jury is neither itself enumerated nor within

the ambit of the Sixth Amendment.

III.

APODACA V. OREGON SHOULD NOT BE

OVERRULED.

There is no reason to overrule Apodaca. As the

Court recently explained, “even in constitutional cases,

a departure from precedent demands special

justification.” Gamble, 139 S. Ct. at 1969 (cleaned up);

see also id. at 1989 (explaining that the Court “should

not invoke stare decisis to uphold precedents that are

demonstrably erroneous”). But, according to Ramos,

“considerations of stare decisis need not play any role”

in deciding whether to overrule Apodaca because it

“consists of a splintered set of opinions.” Pet. Br. 39.

That is wrong for several reasons.

Apodaca was not a summary affirmance that was

decided without briefing and argument. Whether or not

it has “questionable precedential value,” Seminole

Tribe of Fla. v. Fla., 517 U.S. 44, 66 (1996), it warrants

47

respect.9 Even under these circumstances, the Court

demands a “special justification when departing from

precedent.” Alleyne v. United States, 570 U.S. 99, 118

(2013) (Sotomayor, J., concurring) (cleaned up).

That makes sense. The doctrine of stare decisis is

about “maintaining settled law” or abandoning it for a

different legal rule. Leegin, 551 U.S. at 899. Here, the

“settled law” is the prevailing rule that States may

allow criminal convictions based on jury verdicts that

are not unanimous. Accord Alleyne, 570 U.S. at 134 n*

(Alito, J., dissenting). That has been the rule since the

Founding and has been explicit in this Court’s

precedent for nearly 50 years. It should take a special

justification, such as a showing of demonstrable error,

to reverse course at this point.

In any event, neither party is asking the Court to

accord Justice Powell’s solo opinion in Apodaca

precedential force. See Pet. Br. 40-43. Louisiana

believes that the plurality correctly interpreted the

Sixth Amendment and that the Court’s judgment was

correct. Ramos believes, in contrast, that the dissenters

correctly interpreted the Sixth Amendment and that

the Court’s judgment was incorrect. Having granted

review notwithstanding the issue’s rapidly diminishing

importance, see supra at 39, the Court must now decide

which party has the better of the argument.

9

Indeed, Louisiana expressly relied on Apodaca in 1974 when it

readopted its rule and revised the minimum vote to 10-2. See

Records of the Louisiana Constitutional Convention of 1973:

Convention Transcripts, Vol. 7, pp. 1184-1189 (La. Constitutional

Convention Records Commission 1977).

48

This should be an especially easy choice if Ramos

must make any additional showing to succeed in his

challenge. His argument finds no home in the

Constitution’s text or structure, and he oversold the

history. Ramos needs “historical evidence” that is

“better than middling” for the Court to reverse course

on this important issue. Gamble, 139 S. Ct. at 1969.

“And it is not.” Id.

Worse, siding with Ramos may not only disrupt the

law of Louisiana and Oregon as to non-unanimous jury

verdicts. It would be difficult to rule for Ramos here

without undermining the Williams framework and its

validation of juries with fewer than twelve people.

Abandoning the settled understanding that the Sixth

Amendment did not codify every common-law feature

of the jury would lead to a cottage industry of litigation,

flooding the courts with myriad claims about what the

common law required in 1789.

Reopening the seemingly settled debate about the

twelve-juror requirement would be especially

problematic. Approximately 40 States allow some types

of criminal convictions by juries consisting of fewer

than twelve people. See Bureau of Justice Statistics,

State Court Organization (2004), Table 42. And several

States—including Arizona, Florida, Indiana,

Massachusetts, and Utah—allow juries of fewer than

twelve people for certain types of felonies. Id. In short,

discarding this Court’s longstanding approach to the

Sixth Amendment will have “mischievous

consequences” that the Court endeavors to avoid. Swift

& Co. v. Wickham, 382 U.S. 111, 116 (1965).

49

Furthermore, in addition to casting doubt on every

pending felony trial in Louisiana for crimes committed

before January 1, 2019, a mandatory unanimity rule

will have serious consequences for post-conviction

review. Thousands of final convictions in Louisiana and

Oregon could be upset if such a new rule were later

declared retroactive. Indeed, even the Court’s grant of

certiorari in this case has already prompted some

petitioners to seek habeas review on this ground,

arguing for the retroactive application of a rule not yet

decided—and claiming ineffective assistance of counsel

for not challenging non-unanimous convictions

notwithstanding controlling precedent.

Of course, Louisiana would argue against

retroactive application of a new unanimous-jury rule.

Win or lose, though, the flood of motions has already

begun, and the burden on the court system will be

severe. Apparently, “the number of [Oregon] juries

rendering verdicts with one or two holdouts is 25

percent of all juries.” Jeffrey Abramson, We, the Jury:

The Jury System and the Ideal of Democracy, 199

(1994). The potential that about one out of every four

jury trials in two States would need to be retried is

deeply concerning and should give this Court pause

about opening the door to such claims.

There are no countervailing reasons that justify

imposing a unanimity requirement on States. Ramos

emphasizes the issues with Justice Powell’s approach

to incorporation. See Pet. Br. 40-43. But Louisiana is

not defending State law on the ground that the Sixth

Amendment should not apply to it. Louisiana is instead

50

arguing that its jury system complies with the Sixth

Amendment in all respects.

Agreeing with Louisiana may cast doubt on whether

unanimity is constitutionally required at the federal

level. But any tension is hypothetical given that federal

law requires unanimity irrespective of the Sixth

Amendment. See Fed. R. Crim. P. 31(a). Even if the

Court one day must confront this aspect of Apodaca,

however, that is not nearly good enough a reason to

impose unanimity on the States. The “rule’s infidelity

to the text, structure, and history of the Constitution

counsels against extending the principle any further

than our precedent requires.” Haywood, 556 U.S. at

764 (Thomas, J., dissenting). Far from requiring a

mandatory unanimity rule, precedent will need to be

overturned here to extend this ill-considered rule. That

would be unfortunate. “Two wrongs don’t make a

right.” Utah v. Strieff, 136 S. Ct. 2056, 2065 (2016)

(Sotomayor, J., dissenting).

51

CONCLUSION

The Court should affirm the judgment below.

Respectfully submitted,

Jeff Landry

Attorney General

ELIZABETH B. MURRILL

Solicitor General

Counsel of Record

MICHELLE GHETTI

Deputy Solicitor General

COLIN CLARK

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

1885 North Third Street

Baton Rouge, LA 70804

(225) 326-6766

murrille@ag.louisiana.gov

LEON A. CANNIZZARO. JR.

District Attorney,

Parish of Orleans

DONNA ANDRIEU

Chief of Appeals

619 S. White Street

New Orleans, LA 70119

(504) 822-2414

WILLIAM S. CONSOVOY

JEFFREY M. HARRIS

Consovoy McCarthy PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

Counsel for Respondent