Amicus Curiae Brief — Evangelisto Ramos, Petitioner v. Louisiana

No. 18-5924

Sn the Supreme Court of the Antted States

EVANGELISTO RAMOS,

Petitioner,

V.

LOUISIANA,

Respondent.

On Writ of Certiorari to the

Louisiana Court of Appeal, Fourth Circuit

BRIEF OF AMICUS CURIAE

STATE OF OREGON IN SUPPORT

OF RESPONDENT

ELLEN F’. ROSENBLUM

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

DouG M. PETRINA

CHRISTOPHER A. PERDUE

Assistant Attorneys General

1162 Court Street NE

Salem, Oregon 97301-4096

Phone: (508) 378-4402

benjamin.gutman@

doj.state.or.us

1

QUESTION PRESENTED

Oregon has relied on the constitutionality of nonunanimous juries for 47 years. Oregon courts have

siven non-unanimous jury instructions for more than

80 years.

Should this Court overrule Apodaca v. Oregon, 406

U.S. 404 (1972), which held that the Sixth Amendment does not require the jury to be unanimous in

state criminal prosecutions?

1

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ......0.00. ec cceecceeeees 1

TABLE OF CONTENTS... ...0......c ccc ceeccceecceeecceeceeeeens il

TABLE OF AUTHORITIES ........0..0 ec eeeeees lV

INTERESTS OF AMICUS CURIAE STATE OF

OREGON o.oo icc cccccceccceseccesecceueccesccensceeseceeeceuness 1

SUMMARY OF ARGUMENT. ...........c ee cceece ees 3

ARGUMENT 00.0. oe ccc ccccccceecccesccceececeeceeessecenseeensenens 4

A. This Court should take into account Oregon’s

strong reliance interest on the ruling in

APOC... ccceccecceccccceccscuscuccuccsceseuceescuseseeseusesceseeseeees 6

1. Oregon has relied on Apodaca in structuring

its criminal justice system around non-

UNANIMOUS VELAICHS. 2.0... 0c. ccc cec cee cecceeceeceeeeceeeeeees 6

2. Overruling Apodaca would invalidate many

hundreds and potentially thousands and

thousands of CONVICTIONS. .............ccc eee eee eee eeeeee 11

3. Stare decisis exists in part to protect the type

of reliance interests at stake and to prevent the

profound disruption that overruling Apodaca

WOUL CAUSE. ........ccccecceeccecceeceeccseceeceeceseceecesceses 17

4. Oregon’s reliance is not diminished because

Apodaca involved a rule of procedure. ........... 20

B. The rule from Apodaca is workable and

consistent with other areas of law.......................- 21

1. Although Apodaca was a divided opinion, the

decision is not unworkable. ................e cece eee ee 22

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Page(s)

2. Overruling Apodaca would unsettle, not

stabilize, this Court’s case law. ..................208. 26

A. — DULY SIZC.. oo. ee ce ccc ccc cececcececcecesceceseeceseeseeeeees 26

b. Grand juries and civil jJuries.................. 28

CONCLUSION... ececccceteecceceeeeeeneeeeeneeeeeeas 32

1V

TABLE OF AUTHORITIES

Page(s)

Cases Cited

Apodaca v. Oregon,

A406 U.S. 404 (1972) wee cceseesseeesseseseseeeeeeeeens passim

Apprendi v. New Jersey,

530 U.S. 466 (2000) ou... cccceceecccsscccceesssssssteseeees 15

Arizona v. Rumsey,

ABT U.S. 208 (1984) ooo. ccccccessesscseccceesssssssseseeeees 5

Barbour v. Loutstana,

562 U.S. 1217 (2011) wee ccccceesssssseseeeeees 11

Bowen v. Oregon,

558 U.S. 815 (2009) uo. ccceeecccsescccceesssssssseeeeees 11

Brown v. Loutsiana,

4AT U.S. 823 (1980) oo... ccccceseeesesteeeeceeeeeees 10, 16

Burch v. Loutstana,

441 U.S. 180 (1979) ooo ccccceeeeeessteeeceeeeens 10, 16

Chavez v. State of Oregon,

438 P.3d 381 (Or. 2019) we eeeeecceccceeeeseeeenees 15

Colten v. Kentucky,

AOT U.S. 104 (1972) oo... ccccccesssessssssesccesessesseeees 3]

Crawford v. Washington,

541 U.S. 86 (2004) oo ccccceesssccsseccccesssssssssseeeees 15

DeStefano v. Woods,

392 U.S. 681 (1968) oo. ceeeeccccccccceeessssstseseeeees 18

Dickerson v. United States,

530 U.S. 428 (2000) ou... cccceeeesscsecceeeeesssseeees 5, 21

Duncan v. Loutsiana,

391 U.S. 145 (1968) ooo eeeccccccccceesssssstseeeeees 18

Escobedo v. Illinots,

378 U.S. 478 (1964) uo. eeeecccccccceescssceeeeeeseeseeeeeens 18

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Franchise Tax Board of California v. Hyatt,

1389 S. Ct. 1485 (2019)... eeeeeccceeccceeesseeeeees 30

Griffith v. Kentucky,

AT9 U.S. 814 (1987) oo... ccccccessesssseeeseeeeesens 12, 19

Herrera v. Oregon,

562 U.S. 1185 (2011) wee cccccesssssstsseeeees 11

Holland v. Illinots,

493 U.S. 474 (1990) ooo. ccccceesesesescseesceeeessessenees 10

Hughes v. United States,

188 S. Ct. 1765 (2018)... ccccceeescseecceeesseseees 23

Hurtado v. California,

110 U.S. 516 (1884) ooo ccccceeeeesseeeeeees 3, 29, 30

Janus v. AFSCME Council 31,

188 S. Ct. 2448 (2018)... cc ccccccsesctseecceeesseeeneees 9

Johnson v. New Jersey,

384 U.S. 719 (1966) oo eeeeccccccccceeessesssseseeeees 18

Kimble v. Marvel Entnvt, LLC,

1385 8. Ct. 2401 (2015)... cecceeeesseeeeceeeeeens 4,5

Kisor v. Wilkie,

1389 S. Ct. 2400 (2019)... ceeeecsccsesccceeeseeseeees 25

Ludwig v. Massachusetts,

427 U.S. 618 (1976) oo... cccccesesssssstseesceeeeeees 10, 30

McDonald v. City of Chicago,

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

McKoy v. North Carolina,

494 U.S. 488 (1990) ooo. ccccceeeessscseeecceeesseeseeees 10

Michigan v. Bay Mills Indian Cmty.,

184 8. Ct. 2024 (2014)... ccceeeecccsecceeessseseeees 4

Miller v. Alabama,

B67 U.S. 460 (2012) ccccccccssscsscssesssecsssssecssecstessesssecevesseee 15

Vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Minneapolis & St Louis R. Co. v. Bombolis,

241 U.S. 211 (1916) ooo. eeeeecceeeeceeeeeens 29, 30

Miranda v. Arizona,

384 U.S. 486 (1966) oo cceccceccceccceeessesstseeeeeees 18

Mitchell v. Wisconsin,

1389 S. Ct. 2525 (2019)... cccceceesscseccceesseeeeees 22

Montejo v. Louisiana,

556 U.S. 778 (2009) ....eeeeeeccccccccesssseessssesceeeessssseeees 5, 23

Montgomery v. Louisiana,

186 S. Ct. 718 (2016) oo... cccceeeesceesceeeeseeeeeees 16

National Bellas Hess Inc. v. Department of Revenue,

386 U.S. 758 (1967) oi cccceceecccecccceessssssssssseseeeeeees 9

National Federation of Independent

Business v. Sebelius (“NFIB’),

567 U.S. 519 (2012) ooo ccceccccccceccceessssssssssesees 22

Padilla v. Kentucky,

559 U.S. 856 (2010) wo ccceseccccceccceesssssssssseeeees 15

Payne v. Tennessee,

501 U.S. 808 (1991) wo eeecceeceeeeeees 4,5, 11, 20

Pearson v. Callahan,

555 U.S. 223 (2009) oc cccceeeescssecceceessesseeees 20, 21

Peyton v. Rowe,

391 U.S. 54 (1968) ooo cc eeececccseccceessssssssssseeees 12

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

505 U.S. 883 (1992) oo ecceecescscecccsesssssssseeeeees 22

Quill Corp. v. North Dakota,

504 U.S. 298 (1992) wo ceeececcscccccceessssssssseseeeeeees 9

Rosales-Mireles v. United States,

188 S. Ct. 1897 (2018)... cceceecseseessseeesseeeeeees 13

Vil

TABLE OF AUTHORITIES

(continued)

Page(s)

Rowe v. Peyton,

383 F.2d 709 (4th Cir. 1967) ween 12

Schad v. Arizona,

501 U.S. 624 (1991) ooo ccccccceeeeeeeeeeeeens 9, 24

Schiro v. Summerlin,

542, U.S. 848 (2004) ooo. eeeeccccccccssescceceeeeseeeeeeeeens 16

Seminole Tribe v. Florida,

S17 U.S. 44 (1996) ooo cccccccsccceceeeeeeeeeeeeens 23, 24

South Dakota v. Wayfair, Inc.,

188 S. Ct. 2080 (2018)... ccceceeesseseeeeeesssseeeeees 9

State v. Dennison,

No. S066369 (Or. May 28, 2019) oo. 19

State v. Pipkin,

3816 P.3d 255 (Or. 2018) wc eccccccccccscccccccceeeeeeeseeeeens 7

State v. Serrano,

324 P.38d 1274 (Or. 2014). ccccceeeeessteesseees 13

Stovall v. Denno,

388 U.S. 2938 (1967) uo... eeeecececccccessssccccceeeeeseeeeeeeeens 18

Teague v. Lane,

489 U.S. 288 (1989) ooo. cececeeesssseseesesseseeeeeees 16, 19

Timbs v. Indiana,

1389 S. Ct. 682 (2019) vc cecceceeeeeseeeeeees 25,28

United States v. Booker,

543 U.S. 220 (200B) o.oo. eeeeececcccsecssceccceeeeeseeeeeeeeens 22

United States v. Gaudin,

515 U.S. 506 (1995) uo... eeeceeccccccessesccceeeeseeeeeeeeeeens 9

Weaver v. Massachusetts,

187 S. Ct. 1899 (2017) oo ccceeescsseseecssessseeeeees 14

White v. Premo,

443 P.38d 597 (Or. 2019) oo. ceccecccccccceeeeeeeeeeeens 15

vill

TABLE OF AUTHORITIES

(continued)

Page(s)

Williams v. Florida,

399 U.S. 78 (1970) woo. eceeeeeeeeeeeeeeees 3, 26, 27, 28, 31

Constitutional and Statutory Provisions

Or. Const., Art. I, § 42(1)(a), Cf) wee 14

Ox. LAWS. 1935 oi eeessecccccccsssssssceccccceesseaesseeceseueas 7

Or. Rev. Stat. § 187.018... ececcccscccccceeeeeeeeeeeeens 14

U.S. Const., Amend. [Doe eeseeecccceeeeseecceeees 23

U.S. Const., Amend. Voi... eeeecccceceeeeeeees 3,5, 22, 29

U.S. Const., Amend. VI ou... cccccessssceeeeeceeeeens passim

U.S. Const., Amend. VII... eeeeeeecceeeeeeee 22, 29

U.S. Const., Amend. XIV... eee eeeeeeeeee 23, 28, 31

Other Authorities

Alisa Smith & Michael H. Saks,

The Case for Overturning Williams v. Florida and

the Six-Person Jury: History, Law, and Empirical

Evidence, 60 Fla. L. Rev. 441 (2008) uu... 27

American Bar Association,

Criminal Justice Section Standards § 15-11(b)

American Bar Association,

Project on Standards for Criminal Justice, Trial By

Jury § 1.1 (1968) wc cccceeccscccesessssesccssessssseeeens 7

American Bar Association,

Project on Standards for Criminal Justice, Trial By

Jury § 1.1(b) (1968)... ccccceseesesetseesceeessesseeees 27

American Law Institute,

Code of Criminal Procedure § 35D ......cccccccccseeseeseeeeees 6

American Law Institute,

Code of Criminal Procedure, Commentary 1027..... 6

1X

TABLE OF AUTHORITIES

(continued)

Page(s)

American Law Institute,

Report on Code of Criminal Procedure I (19380) ...... 6

Ballot Measure 302-33 (1984) oo. ceceessesseeeeeeeeeeens 7

Barbara Luppi & Francesco Parisi,

Jury Size and the Hung-Jury Paradox, 42 J. Legal

Stud. 399 (2018) oo... cccccessssssssssecceessssssssesesees 26

Bill File,

H.J.R. 10, July 1, 2019),

https://olis.leg.state.or.us/liz/2019R1/Measures/Ove

YVICW/ HI R10 0... eeeeesesessesssesssssesesesesesesessseseeeeeseees 2

David F. Walbert,

The Effect of Jury Size on the Probability of

Conviction: An Evaluation of Williams v. Florida,

22 Case W. Res. L. Rev. 529 (1971) uo. eee 27

Oregon Judicial Department,

Cases Tried Analysis—Manner of Disposition 1

(2018), https:/(www.courts.oregon.gov/about/

Documents/2018CasesTriedAnalysis-

MannerofDisposition. pdf... cccccccseesesesseeeeees 13

Oregon Office of Public Defense Services

Appellate Division,

On the Frequency of Non-Unanimous Felony

Verdicts in Oregon 4 (2009),

https://www.oregon.gov/opds/commission/

reports/PDSCReportNonUnanJuries.pdf................ 13

Randy J. Kozel,

Precedent and Reliance, 62 Emory L.J. 1459

(OZ. ES) 17

4

TABLE OF AUTHORITIES

(continued)

Page(s)

Robert H. Miller,

Six of One ts Not A Dozen of the Other: A

Reexamination of Williams v. Florida and the

Size of State Criminal Juries, 146 U. Pa. L.

Rev. 621 (1998) wu... ceeeecccsccccceesssssssssessceeessesseeees

Testimony of Aaron Knott,

Legislative Director, Oregon Department of

Justice,

https://olis.leg.state.or.us/liz/2019R1/Downloads/

CommitteeMeetingDocument/197041..........e.

Testimony of Mary Sofia,

Legislative Director, Oregon Criminal Defense

Lawyers Association,

https://olis.leg.state.or.us/liz/2019R1/Downloads/

CommitteeMeetingDocument/197310........... ee.

Testimony of Matt Shirtcliff,

President, Oregon District Attorneys Association,

https://olis.leg.state.or.us/liz/2019R1/Downloads/

CommitteeMeetingDocument/196927............e

Testimony of Vanessa Nordyke,

Past President, Oregon State Bar,

https://olis.leg.state.or.us/liz/2019R1/Downloads/

CommitteeMeetingDocument/196791............

The National Registry of Exonerations

(Map), https://www.law.umich.edu/special/

exoneration/Pages/Exonerations-in-the-

United-States-Map.aSpx ........ccccccccessesssssssssssssssssssesesens

1

INTERESTS OF AMICUS CURIAE

STATE OF OREGON

Forty-seven years ago, this Court held in Apodaca

v. Oregon, 406 U.S. 404 (1972)—an Oregon case—that

non-unanimous 11-1 and 10-2 jury verdicts in state

criminal prosecutions do not violate the Sixth

Amendment. Since then, Oregon has relied on that

decision to permit less-than-unanimous jury verdicts

in thousands of felony cases—many hundreds of

which are currently pending on direct appeal and all

of which are potentially subject to collateral review.

Thousands of other cases were tried to nonunanimous verdicts in the decades before Apodaca.

All of those cases are potentially implicated by a decision to overturn Apodaca.

First, it should be made clear what this brief does

not do: It does not address the merits of whether

Apodaca was correctly decided. Nor does this brief

contend that a non-unanimous jury rule is preferable

to a unanimous jury rule. In fact, there is widespread

agreement among the stakeholders in Oregon’s criminal justice system that the state’s constitution should

be amended to require unanimity prospectively. During the most recent legislative session, a resolution

referring a proposed constitutional amendment requiring jury unanimity to the voters was supported

by every major stakeholder—including the Oregon

Attorney General,! the Oregon State Bar,? the Oregon

1 Testimony of Aaron Knott, Legislative Director, Oregon

Department of Justice, available at

https://olis.leg.state.or.us/liz/2019R1/Downloads/CommitteeMeet

ingDocument/197041.

2

District Attorneys Association,? and the Oregon Criminal Defense Lawyers Association4t—and was approved by a 56-0 vote in the state House of Representatives.® The resolution did not receive a vote in

the Senate before the end of the session. But the policy debate is still underway and is likely to continue.

This brief is, however, about stare decisis and the

impact that overturning Apodaca would have on Oregon. A ruling in this case that the Sixth Amendment

requires unanimity in state prosecutions will overturn hundreds if not thousands of past convictions,

convictions that Oregon has a legitimate reliance interest in maintaining. The state submits this brief

primarily to alert the Court to the disruption that

overruling Apodaca would cause to its entire criminal

justice system, including to the victims and witnesses

in each of the felony cases that have been tried to

conviction and affirmed in the past eight decades in

Oregon.

2 Testimony of Vanessa Nordyke, Past President, Oregon

State Bar, avatlable at

https://olis.leg.state.or.us/liz/2019R1/Downloads/CommitteeMeet

ingDocument/196791.

3 Testimony of Matt Shirtcliff, President, Oregon District

Attorneys Association, available at

https://olis.leg.state.or.us/liz/2019R1/Downloads/CommitteeMeet

ingDocument/196927.

4 Testimony of Mary Sofia, Legislative Director, Oregon

Criminal Defense Lawyers Association, available at

https://olis.leg.state.or.us/liz/2019R1/Downloads/CommitteeMeet

ingDocument/197310.

5 See Bill File, H.J.R. 10, July 1, 2019, available at

https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HJR10.

=)

SUMMARY OF ARGUMENT

The doctrine of stare decisis exists to provide stability in the law and to protect those who rely on this

Court's decisions. The extent to which Oregon has

relied on Apodaca cannot be overstated. Oregon

courts have given a non-unanimous jury instruction

in almost every single felony jury-trial case for the

past 47 years. Tens of thousands of jurors have followed those instructions in carrying out their deliberations. If this Court were to overrule Apodaca, it

would invalidate convictions in hundreds if not thousands of cases. The state’s trial, appellate, and postconviction courts would be _ flooded with nonunanimity claims to resolve and overwhelmed by the

staggering number of cases that would have to retried. Many of those cases would not be able to be retried because of the loss of evidence caused by the

passage of time. The state’s legitimate reliance on

Apodaca in structuring its criminal justice system

should be an important consideration for the Court.

This Court also should consider how overruling

Apodaca might destabilize other well-settled areas of

the law. Overruling Apodaca in a decision holding

that the Sixth Amendment incorporates the settled

features of a common-law jury would cast serious

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

which held that the Sixth Amendment does not incorporate the common-law requirement of a 12-person

jury and which permits felony defendants to be tried

with as few as six jurors. It would also call into question the continuing validity of Hurtado v. California,

110 U.S. 516 (1884), which held that the Fifth

Amendment’s grand jury requirement is not incorpo-

4

rated against the states. If the stakes in this case

seem low, given that overruling Apodaca affects only

two states, the grand jury problem is even more i1mmense: more than half the states in the country e1-

ther require no grand jury or require them only for

certain cases.

Stare decisis offers a principled way to consider

long-settled reliance on rules involving unincorporated rights. Indeed, in McDonald v. City of Chicago,

561 U.S. 742, 784-85, 791 (2010)—a case that petitioner and amici invoke—the plurality stressed the

importance of stare decisis in deciding whether to

overturn prior decisions involving unincorporated

rights. This Court should take Oregon’s reliance into

account in applying the doctrine of stare decisis and

decline to overturn Apodaca.

ARGUMENT

“Overruling precedent is never a small matter.”

Kimble v. Marvel Entmt, LEC, 135 S. Ct. 2401, 2409

(2015). Standing by prior decisions is the “preferred

course because it promotes the evenhanded, predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes

to the actual and perceived integrity of the judicial

process.” Jd. (quoting Payne v. Tennessee, 501 U.S.

808, 827-828 (1991)). “It also reduces incentives for

challenging settled precedents, saving parties and

courts the expense of endless relitigation.” Jd. In

short, stare decisis is “a foundation stone of the rule of

law.” Id. (quoting Michigan v. Bay Mills Indian

Cmty., 1848. Ct. 2024, 2036 (2014)).

»)

This Court has set a very high bar for overruling

its prior decisions: The Court will not overrule a prior

decision, even though it may have been incorrectly

decided, absent a “special justification” for doing so.

Kimble, 185 8S. Ct. at 2409; Dickerson v. United

States, 5380 U.S. 428, 443 (2000); Arizona v. Rumsey,

467 U.S. 208, 212 (1984). Considerations include the

reliance interests at stake, the possibility of correction through legislative action, the rule’s workability,

and the need for stability and consistency in the law.

Kimble, 135 S. Ct. at 2409-11; Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 378-79 (2010) (Roberts, C.J., concurring); Montejo v. Louisiana, 556 U.S.

778, 792-93 (2009); Payne, 501 U.S. at 827-28. Reliance interests carry more weight than other factors;

when they exist, they make stare decisis “superpowered.” Kimble, 135 S. Ct. at 2410.

Reliance interests should play a central role in the

analysis of this case. Oregon and Louisiana have

based almost 50 years of felony prosecutions on the

Apodaca rule. Overruling Apodaca would require the

retrial of hundreds if not thousands of cases, and thus

would profoundly disrupt the criminal justice systems

in both states. It also would destabilize this Court’s

case law in other areas. Apodaca is a workable exception to this Court’s incorporation law that is not

impeding the development of any other area of law.

But overruling Apodaca would immediately call into

question other longstanding decisions, including

precedent allowing criminal juries of fewer than 12

members and precedent holding that the Fifth

Amendment’s Grand Jury Clause does not apply to

the States.

6

A. This Court should take into account

Oregon’s strong reliance interest on the

ruling in Apodaca.

1. Oregon has relied on Apodaca in

structuring its criminal justice system

around non-unanimous verdicts.

For more than 80 years, Oregon has allowed nonunanimous jury verdicts in non-murder felony crim1-

nal cases. Petitioner and certain amici emphasize in

their briefs that discriminatory animus was the pr1imary motivation for the constitutional amendment

that gave rise to the rule. The Oregon Attorney General wants it to be abundantly clear that the position

of her state is that discriminatory views of any kind

are not a valid justification for a non-unanimity rule

or any other legal principle.

But a broader examination of the historical context of the rule’s adoption is called for. Oregon began

considering the non-unanimous jury rule at a time

when other states had adopted non-unanimous rules

and major legal institutions supported the change. In

1930, just four years before Oregon adopted the rule,

the American Law Institute completed a proposed

code of criminal procedure and recommended that

states adopt it. ALI, Report on Code of Criminal Procedure 1 (1930). The Code’s purpose was to “provide

an effective administration of the criminal law with

adequate protection to the substantial rights of the

accused.” Jd. at 2. As part of its proposals, the ALI

recommended that states adopt a provision making

unanimity required in capital cases but permitting

five-sixths of the jury to convict in all other cases.

ALI, Code of Criminal Procedure § 355. At the time,

7

five states “depart[ed] from the common law rule requiring a verdict by a unanimous jury 1n all cases[.]”

ALI, Code of Criminal Procedure, Commentary 1027

(citing constitutional provisions from Idaho, Montana,

Oklahoma, and ‘Texas’ permitting less-thanunanimous verdicts in misdemeanor cases and the

constitutional provision from Louisiana permitting

less-than-unanimous verdicts in cases in which the

punishment must be hard labor).

In 1934, Oregonians voted to amend the Oregon

constitution to allow for non-unanimous jury verdicts.

Or. Laws 1935, at 5 (enacted by Ballot Measure 302-

33 (1934)). The stated reason was to save judicial resources and deter jury nullification: Proponents “reasoned that requiring Jury unanimity in criminal cases

had led to unnecessary economic and social costs in

the form of retrials, congested trial dockets, and compromise verdicts reached to avoid the necessity of a

retrial.” State v. Pipkin, 316 P.3d 255, 264 (Or. 2018).

The idea was that even if one or two jurors were inclined to ignore the evidence or the court’s instructions as to the law, those jurors would not be able to

prevent a supermajority of jurors from reaching a just

verdict.

In the years after Oregon adopted its nonunanimous rule, major legal institutions continued to

support the practice. In 1968, taking a position that

it now repudiates, the American Bar Association recommended that states allow non-unanimous jury

verdicts. American Bar Association, Project on

Standards for Criminal Justice, Trial By Jury § 1.1

(1968). The American Bar Association reasoned that

the use of majority verdicts in all jurisdictions would

8

result in 1,400 fewer hung juries per year and that,

although the non-unanimous rule leads to slightly

shorter deliberation, that likely would have no influence on the outcome in the large majority of cases.

Id. at 26-27.

It was against that backdrop that this Court upheld the non-unanimity rule in 1972 in Apodaca, reasoning that the question of jury unanimity was one of

policy to be answered by the states, not the constitution. And for almost fifty years, Oregon and Louisiana have relied on Apodaca to order and administer

their criminal justice systems.

Petitioner is therefore mistaken that Oregon and

Louisiana lack any “legitimate” reliance interest in

convictions obtained from non-unanimous juries. Pet.

Br. 45. In Apodaca, the issue of Oregon’s nonunanimous jury verdict practice was squarely presented to this Court and this Court upheld the practice. Oregon and Louisiana were entitled to take this

6 Amicus Innocence Project argues that there is a correlation between non-unanimous juries and wrongful convictions,

stressing that Louisiana has one of the worst in the nation in

wrongful convictions per capita. Innocence Project Br. at 6. But

Oregon (19 exonerations) has had a much different experience

than Louisiana (63 exonerations) and has a much lower rate per

capita than, for example, Illinois (803 exonerations) and New

York (281 exonerations), which are two states that require unanimity. The National Registry of Exonerations (Map), available

at https://www.law.umich.edu/special/exoneration/Pages/

Exonerations-in-the-United-States-Map.aspx (last visited July

24, 2019). Wrongful convictions are a serious problem for any

criminal justice system, one that warrants extraordinary efforts

to avoid. But non-unanimous juries do not appear to be a significant causal factor.

9

Court at its word that the practice was constitutional.

“[Rjeliance upon a square, unabandoned holding of

the Supreme Court is always justifiable reliance[.]”

Quill Corp. v. North Dakota, 504 U.S. 298, 320 (1992)

(Scalia, J., concurring; emphasis in original), overruled by South Dakota v. Wayfair, Inc., 138 S. Ct.

2080 (2018).

This is not an instance in which the reliance interests were diminished because the Court had signaled

that a decision was at risk of being overruled. See,

e.g., Janus v. AFSCME Council 31, 138 S. Ct. 2448,

2484—85 (2018) (repeated prior notice). That was precisely what happened in the Quill line of cases. In

Quill, this Court adhered to National Bellas Hess Inc.

v. Department of Revenue, 386 U.S. 753 (1967)—

precedent that it disagreed with—because of the rel1-

ance interests, but in doing so the Court conveyed its

misgivings. By the time it revisited the matter in

Wayfair, “other solutions [had] take[n] effect.” Quzll,

504 U.S. at 319. States had reordered their affairs

and the reliance interest was significantly reduced.

The Court then overruled National Bellas Hess and in

doing so relied on its decision from Quill in which the

Court had foreshadowed that possibility.

By contrast, this Court has not expressed grave

doubts about Apodaca over the years and has consistently cited that decision as part of the constellation of

principles informing jury practice. See, e.g., United

States v. Gaudin, 515 U.S. 506, 510 n.2 (1995) (describing the Apodaca holding and applying its implications to a case involving the elements of a crime);

Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991) (noting that “[a] state criminal defendant, at least in non-

10

capital cases, has no federal right to a unanimous jury verdict”); Holland v. Illinois, 493 U.S. 474, 511

(1990) (Stevens, J., dissenting) (applying the reasoning of Apodaca to a challenge to the fair-cross-section

requirement of Sixth Amendment); McKoy v. North

Carolina, 494 U.S. 433, 468 (1990) (Scalia, J., dissenting) (observing that the Court has “approved verdicts

by less than a unanimous jury” and citing Apodaca);

Brown v. Loutstana, 447 U.S. 328, 330-31 (1980) (observing that the Court has held that “the constitutional guarantee of trial by jury’ does not prescribe

“the exact proportion of the jury that must concur in

the verdict” and citing Apodaca); Burch v. Louisiana,

441 U.S. 130, 186 (1979) (noting that the Court “conclude[d] in 1972 that a jury’s verdict need not be

unanimous to satisfy constitutional requirements’);

Ludwig v. Massachusetts, 427 U.S. 618, 625 (1976)

(describing Apodaca and applying its reasoning to a

related jury-right issue).

To be sure, the McDonald plurality noted that the

result in Apodaca was “the result of an unusual division among the Justices,” 561 U.S. at 766 n.14 (plurality op.). But even there, the plurality did not express concerns about the non-unanimity rule itself or

suggest that it should not be relied upon. Quite the

opposite, the plurality recognized the legitimate relliance interests at stake in this area by stressing how

stare decisis may counsel adhering to prior decisions

in this area regardless of their correctness. See id. at

784-85 (plurality op.) ([I]f a Bill of Rights guarantee

is fundamental from an American perspective, then,

unless stare decisis counsels otherwise, that guarantee

is fully binding on the States”; emphasis added).

11

Had this Court clearly signaled that Apodaca was

at serious risk of being overturned after all these

years, Oregon would have been on notice, its reliance

interests would have been reduced, and that risk

would have become part of the policy debate that it is

underway and unresolved. This Court has not given

that notice and has repeatedly denied certiorari on

this issue over the years.’

The Court has explained that stare decisis considerations have less force for constitutional cases where

“correction through legislative action is practically

impossible.” Payne, 501 U.S. at 828. But correction

through another branch of government is not practically impossible here. Louisiana has already legislatively overturned its non-unanimity rule prospectively, and there is widespread agreement among the major stakeholders to do the same in Oregon. Any decision by this Court signaling that Apodaca is at risk

would become an important part of the policy debate

in Oregon.

2. Overruling Apodaca would invalidate

many hundreds’ and _= potentially

thousands and thousands of

convictions.

Oregon’s reliance on Apodaca deserves consideration because of the serious disruption to Oregon’s

criminal justice system that would result from overruling Apodaca. Such a ruling would automatically

require retrial in many hundreds, if not thousands, of

7 See, e.g., Barbour v. Louisiana, 562 U.S. 1217 (2011);

Herrera v. Oregon, 562 U.S. 11385 (2011); Bowen v. Oregon, 558

U.S. 815 (2009).

12

cases on direct review. If this Court treated jury

unanimity as a watershed procedural rule to be applied retroactively on collateral review or concluded

that merely instructing juries that they could reach

non-unanimous verdicts was structural error, the

number of affected cases that would have to be retried would swell to thousands. And in many cases,

particularly the older cases, retrial will likely be impossible because of the impact that the passage of

time will have on the prosecution’s case as witnesses

disappear, memories fade, and evidence is lost. See

Peyton v. Rowe, 391 U.S. 54, 62 (1968) (“The greater

the lapse of time, the more unlikely it becomes that

the state could reprosecute if retrials are held to be

necessary.) (quoting Rowe v. Peyton, 383 F.2d 709

(4th Cir. 1967)).

Direct Review. The most certain implication of a

decision overruling Apodaca would be for cases for

which the final judgment has not been issued. A

“new rule for the conduct of criminal prosecutions is

to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes

a ‘clear break’ with the past.” Griffith v. Kentucky,

479 U.S. 314, 328 (1987).

In Oregon, that number easily may eclipse a thousand cases. In the wake of this Court’s decision to

srant certiorari in this case, criminal defendants have

filed Ramos claims in several hundred cases. But

siven the time lag between trial and appeal, and the

time it will take this Court to issue any decision in

this case, that number could easily exceed a thousand

cases, including cases currently being tried in the tr1-

13

al courts. Most of those cases likely will include nonunanimous verdicts. In 2018 alone, for example,

there were 673 felony jury trials in Oregon, and studles suggest that as many as two-thirds of those cases

would have had a non-unanimous verdict. Oregon

Judicial Department, Cases Tried Analysis—Manner

of Disposition 1 (2018), available at

https://www.courts.oregon.gov/about/Documents/2018

CasesTriedAnalysis-MannerofDisposition.pdf (last

visited July 24, 2019); Oregon Office of Public Defense Services Appellate Division, On the Frequency

of Non-Unanimous Felony Verdicts in Oregon 4

(2009), available at https://www.oregon.gov/opds/

commission/reports/PDSCReportNonUnanJuries.pdf

(last visited July 24, 2019) (finding 65.5 percent of

felony cases between 2007 and 2008 where the jury

was polled had a non-unanimous verdict on at least

one count).

The amici States suggest that some of those convictions will be insulated from challenge by preservation rules. New York Br. 28-29. But like this Court,

Oregon appellate courts correct plain error. See, e.g.,

Rosales-Mireles v. United States, 138 S. Ct. 1897,

1903 (2018) (holding that ordinary guideline errors

are plain error in federal cases); see also State v. Serrano, 324 P.3d 1274, 1280 (Or. 2014) (describing plain

error as legal error apparent on the face of the record). In the wake of the grant of certiorari in this

case, Oregon appellate courts have already been deluged with claims arguing that, if this Court overrules

Apodaca, then giving non-unanimous jury instructions and accepting non-unanimous verdicts constitute plain errors.

14

The potential disruption is not limited to cases in

which the record establishes that the jury’s verdict

was non-unanimous. Defendants are arguing that an

instruction allowing for non-unanimous verdicts 1s a

structural error that requires reversal for all convictions, even for those for which the jury was not polled

or those for which the jury was unanimous. See

Weaver v. Massachusetts, 1387 S. Ct. 1899, 1907-08

(2017) (discussing structural-error doctrine). AIlthough the issue of structural error is not presented

in this case, that issue would immediately leap to the

forefront if this Court were to overturn Apodaca. And

even if the courts ultimately were to reverse only in

cases where the record affirmatively reflected a nonunanimous verdict, that subset of cases still would

include, at the very least, hundreds of convictions.

The burden of retrying cases does not fall solely on

the state; 1t is a burden that victims and survivors of

the crimes also shoulder. In Oregon, a crime victim

has constitutional and statutory rights in criminal

proceedings. See Or. Const., Art. I, § 42(1)(a), (); Or.

Rev. Stat. § 187.013. The story of retrying these cases does not begin and end with the difficulties that

the state will face in attempting reprosecution or the

burden on the courts. It must also account for the

sheer number of victims and their families who would

be retraumatized by having their offenders’ convictions reversed and having to start the lengthy trial

process all over from the beginning, after finally

achieving finality.

Petitioner argues that the “need for a certain

number of retrials” in two states should not dissuade

this Court from overruling Apodaca. Pet. Br. 46. Pe-

15

titioner vastly understates the potential disruption

unless by “certain number” he means many hundreds

and potentially thousands. For Oregon, at least, the

prospect of invalidating hundreds if not thousands of

convictions far exceeds anything the state court system has faced as a result of past sea changes in criminal procedure. This Court’s Sixth Amendment decisions involving sentencing and _ confrontation—

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

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

tidal waves through Oregon’s appellate system. A decision overturning Apodaca would be tantamount to a

tsunami. The Court should take into account the

chaos that overruling Apodaca would have on Oresons and Louisiana’s criminal justice systems, particularly because those states have simply continued

a practice that this Court expressly authorized 47

years ago.

Collateral Challenges. Nor would potential retrials be necessarily limited only to those cases that

have not proceeded to a final judgment on direct appeal. In Oregon, criminal defendants can also seek

post-conviction relief based on new rules of constitutional law, even years after the conviction is final.

See White v. Premo, 443 P.3d 597, 603 (Or. 2019) (allowing petition challenging 24-year old murder conviction based on Miller v. Alabama, 567 U.S. 460

(2012)); Chavez v. State of Oregon, 488 P.3d 381, 383

(Or. 2019) (claim of ineffective assistance under Padilla v. Kentucky, 559 U.S. 356 (2010)). Thus, if this

Court now rules that a criminal defendant is entitled

to a unanimous jury verdict, that holding may result

in post-conviction petitions to challenge more than 40

years worth of otherwise final convictions, during

16

which time juries were uniformly instructed that

their verdicts did not need to be unanimous.

Post-conviction petitioners face a high bar to obtaining relief based on new rules of constitutional

law. As a matter of federal law, “new constitutional

rules of criminal procedure will not be applicable to

those cases which have become final before the new

rules are announced.” Teague v. Lane, 489 U.S. 288,

310 (1989) (plurality op.). But Teague recognizes two

exceptions, one of which encompasses new “watershed rules of criminal procedure,” which are procedural rules “implicating the fundamental fairness and

accuracy of the criminal proceeding.” Montgomery v.

Louisiana, 136 8. Ct. 718, 728 (2016)). A decision

overturning Apodaca would undoubtedly be a “new

rule” for purposes of collateral review. See Teague,

489 U.S. at 301 ([A] case announces a new rule if the

result was not dictated by precedent existing at the

time the defendant’s conviction became final.”). The

only question would be whether it was a watershed

rule of criminal procedure. It is not, because unanimity is not a rule that “without which the likelihood of

an accurate conviction is seriously diminished.”

Schiro v. Summerlin, 542 U.S. 348, 352 (2004) (emphasis omitted). If this Court reverses Apodaca, it

should be careful in articulating its holding to avoid

suggesting that it 1s.8

8 Although the amici States treat it as a foregone conclusion that a decision overruling Apodaca would not apply retroactively (New York Br. 28), their confidence may be overstated.

See Brown, 447 U.S. at 331 (plurality opinion in pre-Teague decision holding that the rule from Burch—which invalidated nonunanimous six juror verdicts—applied retroactively to all cases).

17

The point is that the retroactivity question inev1-

tably hangs over any decision to reverse Apodaca.

And any uncertainty in the interim is yet another cost

that should weigh in the balance. The cost will manifest in the hundreds and hundreds of cases on direct

appeal that will require the litigation of nonunanimity claims. It will manifest in the hundreds, if

not thousands, of petitions for post-conviction and

federal habeas relief that will be filed. See, e.g., Hall

v. Myrick, No. 18-9297 (filed May 16, 2019) (petition

for certiorari requesting that this Court hold an unpreserved non-unanimous jury claim in a federal habeas corpus case). And it will manifest in the inevitable delay of finality to crime victims and other interested parties that those petitions and appeals will

create.

3. Stare decisis exists in part to protect

the type of reliance interests at stake

and to prevent the profound disruption

that overruling Apodaca would cause.

Decisions by this Court have enormous direct and

indirect consequences that ripple throughout the

country. Overruling a decision governing how a state

may administer the jury-trial requirement in cases

that include a felony charge is the type of pervasive

decision that, by its nature, has enormous, farreaching implications. Yet even though the Court

“has immense power to initiate legal change, [it has]

limited tools to manage it,” especially the disruption

that occurs when the Court abruptly overturns

longstanding decisions. Randy J. Kozel, Precedent

and Reliance, 62 Emory L.J. 1459, 1487 (2018).

18

That has not always been the case. When this

Court had to determine the effects of some of its most

important incorporation decisions, it applied a

framework that expressly considered reliance. See,

e.g., Stovall v. Denno, 388 U.S. 293, 297 (1967) (concluding that, in determining the effect of a new rule,

this Court should consider reliance interests and the

effects retroactive application might have on the administration of justice). The Court mitigated the disruption by making some new constitutional rules apply only prospectively.

Consider, for example, DeStefano v. Woods, 392

U.S. 6381 (1968). DeStefano held that the rule from

Duncan v. Louisiana, 391 U.S. 145 (1968), which incorporated the jury-trial right against the states,

would apply only to trials that began after Duncan’s

date of decision. Jd. at 6383. The Court emphasized

that “the effect of a holding of general retroactivity on

law enforcement and the administration of justice

would be significant, because the denial of jury trial

has occurred in a very great number of cases in those

States not until now according the Sixth Amendment

cuarantee.” Id. at 634.

The same was true in Johnson v. New Jersey, 384

U.S. 719, 720 (1966), where this Court held that the

rules from Escobedo v. Illinois, 378 U.S. 478 (1964),

and Miranda v. Arizona, 384 U.S. 486 (1966), would

apply only to cases in which trials began after the

date of decision. This Court reasoned that retroactive

application of the rules to all cases on direct review

would “seriously disrupt the administration of our

criminal laws” by requiring “the retrial or release of

numerous prisoners found guilty by trustworthy evi-

19

dence in conformity with previously announced constitutional standards.” Jd. at 731. In those cases,

this Court’s analysis specifically included consideration of the reliance of the states and the impact on the

administration of justice of a retroactive application

of the exclusionary rule.

But this Court subsequently adopted a more rigid

set of retroactivity rules that significantly limit its

ability to manage the fallout from one of its decisions.

A decision immediately, and automatically, applies to

all cases for which the appellate judgment has not yet

been issued. See Griffith, 479 U.S. at 328. Standing

alone, that is a large number of cases, because of the

time lag between a trial and the resolution of the appeal. For example, in Oregon, there are cases being

held pending the decision in this case that date back

to at least 2016. See, e.g., State v. Dennison, No.

80663869 (Or. May 238, 2019) (ordering that appeal

filed in October 2016 be held in abeyance until a decision in this case). And, as discussed, a more limited

subset of this Court’s decisions apply retroactively to

cases on collateral review. See Teague, 489 U.S. at

310-14. The result is that any time this court overrules a longstanding constitutional decision, there is

a serious risk of disruption that the Court cannot mitigate.

Stare decisis is a legitimate—and, after Griffith,

potentially the only—tool for avoiding that damage.

Reliance interests lie at the core of the doctrine, and

stare decisis principles can prevent consequences that

would otherwise sow massive immediate chaos in Oregon trial, appellate, and post-conviction courts. Petitioner counters that Apodaca must be overruled be-

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