Reply Brief — Evangelisto Ramos, Petitioner v. Louisiana

Supreme Court briefSep 6, 2019

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No. 18-5924

IN THE

EVANGELISTO RAMOS,

Petitioner,

LOUISIANA,

Respondent.

On Writ of Certiorari

to the Court of Appeal of Louisiana, Fourth Circuit

REPLY BRIEF FOR PETITIONER

Jeffrey L. Fisher

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Yaira Dubin

O’MELVENY & MYERS LLP

Times Square Tower

7 Times Square

New York, NY 10036

G. Ben Cohen

Counsel of Record

Shanita Farris

Erica Navalance

THE PROMISE OF JUSTICE

INITIATIVE

1024 Elysian Fields Avenue

New Orleans, LA 70116

(504) 529-5955

bcohen@defendla.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

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

The Sixth Amendment requires a unanimous

jury verdict to convict ........................................... 2

A. This Court has already determined

multiple times that the Jury Trial Clause

requires unanimity ......................................... 2

B. First principles confirm this Court’s

consistent understanding of the Jury

Trial Clause .................................................... 6

II. The unanimity requirement applies to the

states ................................................................... 17

A. The Fourteenth Amendment requires

states to abide by the unanimity

requirement .................................................. 17

B. The State lacks any valid reliance

interest in Apodaca....................................... 19

CONCLUSION .......................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

Allen v. United States,

164 U.S. 492 (1896) ..............................................14

Am. Publ’g Co. v. Fisher,

166 U.S. 464 (1897) .......................................... 7, 11

Andres v. Unites States,

333 U.S. 740 (1948) ................................................3

Apodaca v. Oregon,

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

Ballew v. Georgia,

435 U.S. 223 (1978) ..............................................15

Benton v. Maryland,

395 U.S. 784 (1969) ..............................................11

Blueford v. Arkansas,

566 U.S. 599 (2012) ..............................................14

Callan v. Wilson,

127 U.S. 540 (1888) ................................................7

Citizens United v. FEC,

558 U.S. 310 (2010) ........................................ 19, 20

Descamps v. United States,

570 U.S. 254 (2013) ................................................3

District Attorney’s Office for the Third Judicial

District v. Osborne,

557 U.S. 52 (2009) ................................................18

Downum v. United States,

372 U.S. 734 (1963) ................................................7

Duncan v. Louisiana,

391 U.S. 145 (1968) ..............................................13

iii

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) ..............................................18

Harris Tr. & Sav. Bank v. Salomon Smith

Barney, Inc.,

530 U.S. 238 (2000) ..............................................18

J.E.B. v. Alabama,

511 U.S. 127 (1994) ................................................6

Janus v. Am. Fed’n of State, Cty., and Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) ..........................................19

Johnson v. Louisiana,

406 U.S. 356 (1972) ............................................ 4, 5

Lockhart v. Fretwell,

506 U.S. 364 (1993) ..............................................20

McCoy v. North Carolina,

494 U.S. 433 (1990) ..............................................13

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................... 1, 3, 16

O’Callaghan v. Att’y Gen.

[1993] 2 I.R. 17 (Ir.)..............................................16

Richardson v. United States,

526 U.S. 813 (1999) ................................................3

Seminole Tribe v. Florida,

517 U.S. 44 (1996) ..................................................3

Smith v. Texas,

311 U.S. 128 (1940) ..............................................15

State v. Hodge,

No. 2019-KA-568 (La. 2019) ................................21

Stogner v. California,

539 U.S. 607 (2003) ................................................8

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................................5

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................ 3, 17, 18, 19

Tyler v. Cain,

533 U.S. 656 (2001) ..............................................20

United States v. Gaudin,

515 U.S. 506 (1995) ..............................................11

United States v. Haymond,

139 S. Ct. 2369 (2019) .................................. 2, 4, 13

Williams v. Florida,

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

Yee v. Escondido,

503 U.S. 519 (1992) ..............................................18

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 3 ........................................7

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

Clause ...................................................................11

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

U.S. Const. amend. VII ............................................ 7, 8

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

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

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

Immunities Clause...............................................18

Statutes

28 U.S.C. § 98 ...............................................................9

Criminal Justice Act 1984, § 25 (Ir.) .........................16

Juries Act 1974, § 17 (Eng.) .......................................16

Other Authorities

Blackstone, William, Commentaries on the

Laws of England (1769) ................................... 8, 11

Kalven, Harry Jr. & Hans Zeisel, The

American Jury: Notes for an English

Controversy, 4 Chi. B. Rec. 195 (1967) ..............14

Langbein, John H., The English Criminal Trial

Jury on the Eve of the French Revolution,

in The Trial Jury in England, France,

Germany 1700-1900 (Antonio Schioppa ed.,

1987) .......................................................................7

Lieb, Ethan J., A Comparison of Criminal Jury

Decision Rules in Democratic Countries, 5

Ohio St. J. Crim. L. 629 (2008)............................16

Lloyd-Bostock & Cheryl Thomas, Decline of the

“Little Parliament”: Juries and Jury

Reform in England and Wales, 62-SPG

Law & Contemp. Probs. 7 (1999).........................16

Neilson, William S. & Harold Winter, The

Elimination of Hung Juries: Retrials and

Nonunanimous Verdicts, 25 Int’l Rev. L. &

Econ. 1 (2005) ................................................. 14, 15

Story, Joseph, Commentaries on the

Constitution of the United States (1833) ............11

Story, Joseph, Commentaries on the

Constitution of the United States (5th ed.

1891) .....................................................................11

REPLY BRIEF FOR PETITIONER

The stare decisis shoe is now on the other foot.

Given Justice Powell’s decisive vote, this Court has

always treated Apodaca v. Oregon, 406 U.S. 404

(1972), as having “held that although the Sixth

Amendment right to trial by jury requires a

unanimous jury verdict in federal criminal trials, it

does not require a unanimous jury verdict in state

criminal trials.” McDonald v. City of Chicago, 561 U.S.

742, 766 n.14 (2010). In other words, Apodaca held

that the Sixth Amendment requires unanimity, but

the Fourteenth Amendment does not compel the states

to abide by that requirement. But neither the State nor

anyone else defends that holding; the State, in fact,

disavows it. Resp. Br. 47, 49. The State’s sole

argument in defense of the judgment below is that the

Sixth Amendment does not require unanimity at all—

meaning that not only other states but also the federal

government could adopt a nonunanimous verdict rule.

This argument is foreclosed by precedent. Not only

did five Justices in Apodaca reject the State’s view of

the Sixth Amendment, but the Court has done so

numerous other times before and since. It is much too

late in the day to reopen that issue—and to give rise to

a host of other difficult questions to boot.

The State’s Sixth Amendment argument also fails

on its own terms. The text, structure, history, and

function of the Jury Trial Clause all point to the same

conclusion: The right to trial by jury includes the timehonored requirement of a unanimous vote to convict.

And, contrary to the State’s contention, reaffirming

that rule would not disturb this Court’s holding in

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

may have fewer than twelve members. The Court

concluded in Williams that the twelve-person feature

of the common-law jury was a “historical accident,” not

considered essential to its proper functioning. Id. at

89-90. The unanimity requirement, by contrast, has

always been deemed vital.

Finally, the Court should not bow to the State’s

claim of a reliance interest in convictions it has

obtained by nonunanimous verdict. Having renounced

the legal linchpin of Apodaca, the State is in no

position to make assertions about settled expectations.

In any event, reliance arguments cannot relieve the

State of its obligation to abide by one of our Nation’s

most fundamental protections against erroneous

deprivations of liberty.

The Sixth Amendment requires a unanimous

jury verdict to convict.

A. This Court has already determined multiple

times that the Jury Trial Clause requires

unanimity.

1. In no fewer than fourteen opinions—ranging

from one in the late nineteenth century to two just last

Term—this Court has explained that the Sixth

Amendment’s Jury Trial Clause requires a

“unanimous” verdict to convict. See United States v.

Haymond, 139 S. Ct. 2369, 2376 (2019) (citation

omitted); Petr. Br. 16-18 (citing the other thirteen

cases). The State asks this Court to brush aside all of

those decisions, contending not a single one is entitled

to any precedential value. Resp. Br. 40-43.

This Court’s decisions are worth more than that.

Yes, some of the prior declarations that the Jury Trial

Clause requires unanimity were made “in passing”

(Resp. Br. 41) or without substantial elaboration. But

some—both before and after Apodaca—were

important components of holdings. See, e.g., Descamps

v. United States, 570 U.S. 254, 269 (2013) (Sixth

Amendment rule that juries must “unanimously” find

essential facts required narrow construction of federal

sentence enhancement statute); Richardson v. United

States, 526 U.S. 813, 817 (1999) (rule that juries must

“unanimously find” each element required pinpointing

what facts constitute a given element under federal

criminal statute); Andres v. Unites States, 333 U.S.

740, 748-49 (1948) (“requirement of unanimity”

supported construing federal capital sentencing

statute to require unanimity). And “[w]hen an opinion

issues for the Court, it is not only the result but also

those portions of the opinion necessary to that result

by which [the Court] is bound.” Seminole Tribe v.

Florida, 517 U.S. 44, 67 (1996).

This Court’s more glancing references to the

unanimity rule are telling in their own right. In recent

decisions applying the incorporation doctrine, for

example, the Court described Apodaca as the “sole

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

(2019), to “the well-established rule that incorporated

Bill of Rights protections apply identically to the

States and the Federal Government,” McDonald, 561

U.S. at 766 n.14. If the Sixth Amendment did not

require unanimity, Apodaca would not be an exception

at all. The unanimity principle would have no salience

in incorporation cases.

The State’s position cannot even be squared with

Apodaca itself. Justice Powell, whose concurrence in

the judgment “broke the tie,” McDonald, 561 U.S. at

766 n.14, and four other Justices concluded after full

briefing and careful consideration that “the Sixth

Amendment’s guarantee of trial by jury embraces a

guarantee that the verdict of the jury must be

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

dissenting); see also Johnson v. Louisiana, 406 U.S.

356, 369 (1972) (Powell, J., concurring in the judgment

in Apodaca); id. at 382 (Douglas, J., dissenting in

Apodaca). As petitioner has noted, this Court has

accorded such five-Justice holdings stare decisis value

in the past. Petr. Br. 17 n.7. The State offers no

argument for declining to do so here.

2. Disowning the longstanding view that the Sixth

Amendment requires unanimity would have farreaching and deeply unsettling consequences. For

starters, the State’s position would insulate

nonunanimous verdicts in Louisiana and Oregon from

constitutional scrutiny for years to come. Oregon

continues to maintain its nonunanimity regime, and

Louisiana still allows nonunanimous verdicts for any

crime committed before 2019. See Petr. Br. 9.

Adopting the State’s position would also invite

other state legislatures, as well as Congress, to

dispense with unanimity rules. Sensing this problem,

the State suggests “the issue is unlikely to arise again

in the foreseeable future, if ever.” Resp. Br. 45 n.8. But

the fourteen states appearing as amici tell a different

story, indicating they would like to “experiment[]”

with nonunanimity regimes. Br. of Utah et al. 26-31.

And it is not hard to imagine Congress considering

similar adjustments to federal law. In recent years, for

instance, Congress has curtailed the jury trial rights

of at least one disfavored group. See, e.g., Haymond,

139 S. Ct. at 2385 (sex offenders). Maybe Congress

would explore a comparable tack, at least in a subset

of federal cases.

Accepting the State’s position would also trigger a

multitude of additional constitutional questions. To

start: What would be the minimum number (or

percentage) of votes needed for a conviction? Ten? Nine

(the State’s rule when Apodaca was decided, see

Johnson, 406 U.S. at 357 n.1)? A simple majority? The

State refuses to say. See Resp. Br. 45 n.8. Nor does the

State even tell the Court how that question would be

analyzed. History certainly provides no guidance. In

Apodaca, Justice White suggested the relevant metric

would be “the function served by the jury in

contemporary society.” 406 U.S. at 410. But the State

rightly distances itself from that amorphous approach

too. Resp. Br. 30-31. This Court should require more

before casting aside an age-old component of the right

to jury trial and committing itself to a new approach.

Questions of scope could arise as well. The Sixth

Amendment does not differentiate among types of

“criminal prosecutions,” U.S. Const. amend. VI. So

would the State’s position enable states to dispense

with unanimity for conviction in capital cases? Would

there be some sort of sliding scale depending on the

seriousness of the charge?

Finally, if the State were right that the Sixth

Amendment codifies no historical attribute—no

matter how vital or well pedigreed—that is not

referenced explicitly, what about other foundational

aspects of the right to trial by jury? Could states

require juries to deliberate in public view? Would the

“fair cross-section” requirement recognized in Taylor

v. Louisiana, 419 U.S. 522, 526-28 (1975), continue to

be sustainable?

These questions may not come all at once. But

many would likely arise in subsequent years, creating

new areas of confusion and vexing constitutional

litigation. Far better to stick to the venerable

understanding of the Sixth Amendment that this

Court has followed for generations.

B. First principles confirm this Court’s

consistent understanding of the Jury Trial

Clause.

Even if the matter were not already settled, first

principles confirm that the Sixth Amendment requires

a unanimous verdict to convict. Indeed, the State’s

argument to the contrary fails on every level.

1. Text. The State’s opening premise is that

“[n]othing in the Constitution’s text” indicates

unanimity is necessary to convict. Resp. Br. 12. That

is incorrect. The unanimity requirement was an

essential aspect of the common-law right to trial by

jury. And as this Court has repeatedly instructed, the

Sixth Amendment’s phrase “trial, by an impartial

jury” is a clear reference to the common-law right and

must be construed accordingly. See Petr. Br. 20-21

(citing case law).

Ignoring these instructions, the State protests

that the word “jury” cannot be given its common-law

meaning or else jury service would be limited to “male

freeholders.” Resp. Br. 13 (citation and internal

quotation marks omitted). There is no evidence,

however, that historical restrictions regarding who

could serve on juries were ever considered part of the

defendant’s right to trial by jury. To the contrary, such

restrictions were designed to serve other ends and

have fallen away with developments like “the

enlightened emancipation of women.” J.E.B. v.

Alabama, 511 U.S. 127, 134 (1994) (citation omitted).

More fundamentally, the key language here is not

the word “jury” standing in isolation. The Sixth

Amendment guarantees a “trial, by . . . jury.” U.S.

Const. amend. VI. This phrase covers more than just

having a jury; it includes the method by which the jury

reaches a verdict. That is why a “mistrial” occurs—at

common law, as today—if the jury is unable to agree

on a verdict. 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); Downum v. United

States, 372 U.S. 734, 736 (1963). In short, whatever

common-law connotation the unadorned word “jury”

may carry with it, there can be little doubt that “trial

by jury” includes a right to insist that the jury reach

its verdict in a particular way: by a unanimous vote.

2. Structure. The structure of the Constitution

likewise supports the unanimity requirement.

As the State concedes (Resp. Br. 13), the Sixth

Amendment should be read in concert with Article III’s

instruction that “[t]he trial of all crimes, except in

cases of impeachment, shall be by jury.” U.S. Const.

art. III, § 2, cl. 3. The State questions whether Article

III requires unanimity. Resp. Br. 13-15. But this Court

has explained that Article III requires “a trial in that

mode, and according to the settled rules of the common

law.” Callan v. Wilson, 127 U.S. 540, 549-50 (1888).

Unanimity, of course, was foremost among those rules.

See Petr. Br. 19-20.

The State also errs when comparing the Sixth

Amendment to the Seventh Amendment. The Seventh

Amendment requires a unanimous verdict in civil

cases, Am. Publ’g Co. v. Fisher, 166 U.S. 464, 467-68

(1897), and the State does not dispute that it would be

incongruous—indeed, otherwise unheard of—for the

Bill of Rights to provide greater protection from civil

liability than from criminal convictions. See Petr. Br.

25. But the State argues the Seventh Amendment

demands precisely this transposition because, unlike

the Sixth Amendment, it “expressly references the

‘common law.’” Resp. Br. 14.

Not so. The Seventh Amendment references the

common law to describe which civil lawsuits it covers

and when courts can “reexamine[]” facts tried to juries.

U.S. Const. amend. VII. It does not say anything more

than the Sixth Amendment does regarding how juries

must reach their verdicts. Accordingly, when it comes

to unanimity, both provisions are equally inexplicit.

The maxim that the Constitution should not “grant[]

greater protection . . . to property than to human

liberty,” Stogner v. California, 539 U.S. 607, 631-32

(2003), controls.

Finally, the State contends that the vicinage

requirement in the Sixth Amendment itself

demonstrates that insofar as the Framers wanted the

Jury Trial Clause to guarantee a common-law feature

of that right, they said so explicitly. Resp. Br. 5, 17-19.

The vicinage requirement actually supports the

opposite (more conventional) inference: where the

drafters of the Bill of Rights wanted to deviate from a

core aspect of a common-law right, they said so

explicitly. The common-law vicinage rule required the

jury to be drawn from the local “county.” Williams, 399

U.S. at 93 n.35 (citing 4 William Blackstone,

Commentaries on the Laws of England *350-51

(1769)). The Jury Trial Clause, by contrast, requires a

jury to come from merely the local “state and district,”

U.S. Const. amend. VI—typically a much larger

geographical region. Williams, 399 U.S. at 95 n.39; see

also 28 U.S.C. § 98 (listing the numerous counties in

each judicial district in Louisiana); Petr. Br. 23 n.9

(describing debate and compromise concerning

vicinage rule). Consequently, the absence of an explicit

voting rule in the Jury Trial Clause signals that the

Framers accepted, not rejected, the common law’s

unanimity requirement.

3. History. The State does not cite a single

contemporaneous authority endorsing its hollowed-out

conception of the Jury Trial Clause. And for all the

State’s attempts to downplay petitioner’s historical

evidence as “middling,” Resp. Br. 9, 30, 48, that

evidence reinforces that the Clause requires a

unanimous verdict to convict.

a. The State first argues that the Framers would

not have expected the words “trial by jury,” “without

more,” to trigger a unanimity requirement because

some early state constitutions explicitly imposed a

unanimity requirement, while others did not. Resp.

Br. 15-17. But here, as with the vicinage requirement,

the State gets it exactly backward: the variation in

state constitutional language supports petitioner. All

agree that the “general rule” throughout the colonies

and in the immediate post-Founding era was

unanimity. Resp. Br. 16-17. So variation in language

among state constitutions shows that the Framers

would have expected unanimity to be required

regardless of whether it was explicitly spelled out in a

constitutional guarantee of “trial by jury.” See Br. of

ACLU 14-16 (collecting examples of state constitutions

held to require unanimity even though not explicitly

stated in jury trial provisions).

The State’s attempts to extract significance from

the Sixth Amendment’s drafting history fare no better.

Petitioner has already answered the State’s argument

that the deletion of the express reference to unanimity

from Madison’s initial draft signaled an indifference to

what type of vote was needed to convict. See Petr. Br.

21-24. And while the State spills much ink arguing

that the Framers did not intend to require that juries

have “every common-law feature,” Resp. Br. 4-5. 11-19

(emphasis added), that argument attacks a straw man.

Petitioner agrees that the Sixth Amendment “d[oes]

not guarantee every ‘accidental’ or ‘negligible’ feature

of the common-law jury.” Petr. Br. 23 (quoting

Williams, 399 U.S. at 88, 90, 102). Rather, as this

Court has held, the Sixth Amendment guarantees the

integral components of the common-law jury trial

right. See Petr. Br. 23-24 (citing cases).

b. That leaves the State to tackle the notion that

unanimity was a critical component of the commonlaw right to trial by jury. See Resp. Br. 20-29. The

State’s efforts fail there as well: As numerous seminal

Framing-era authorities recognized, unanimity was

indispensable to the common-law right. See Petr. Br.

24-27, 33.

The State quibbles with the authorities petitioner

collects, suggesting that several references to

unanimity were “stray,” “in passing,” or “taken out of

context.” Resp. Br. 6, 22. This is a losing battle.

Learned authorities on the common law, as well as

several Framers themselves, said in no uncertain

terms that unanimity was a crucial feature of trial by

jury—and they said so again and again. See Petr. Br.

19, 24-26. It is of no moment that some (though not all)

of these declarations were brief. If anything, that

brevity only underscores how non-controversial

everyone considered the unanimity requirement to be.

As a readily understood rule and one of the “essential

features of trial by jury at the common law,” the

unanimity requirement needed no elaboration or

lengthy defense. Am. Publ’g Co., 166 U.S. at 468.1

The State also criticizes petitioner’s reference to a

passage in Justice Story’s Commentaries stating that

the Constitution requires that the jury “unanimously

concur in the guilt of the accused.” 2 Joseph Story,

Commentaries on the Constitution of the United

States § 1779 (5th ed. 1891); see Resp. Br. 25-26. It

does appear petitioner made the same mistake this

Court has previously made: erroneously assuming

these words were written by Story himself rather than

a subsequent editor. See United States v. Gaudin, 515

U.S. 506, 510 (1995). But there is no question

regarding Justice Story’s understanding of the Sixth

Amendment. In a passage from the original

Commentaries petitioner also quoted but the State

ignores, Justice Story explained that in criminal

prosecutions “unanimity in the verdict of the jury is

indispensable.” 2 Joseph Story, Commentaries on the

Constitution of the United States § 777 (1833)

(emphasis added), cited in Petr. Br. 24.

A similar phenomenon exists with respect to the Double

Jeopardy Clause. This Court has observed that, “[a]s with many

other elements of the common law,” the protection against double

jeopardy “was carried into the jurisprudence of this Country

through the medium of Blackstone, who codified the doctrine in

his Commentaries.” Benton v. Maryland, 395 U.S. 784, 795

(1969). Yet Blackstone’s reference to the guarantee against

double jeopardy is strikingly succinct. See id. (citing 4 Blackstone,

Commentaries *335).

As a fallback, the State contends that these

historical authorities prove too much. Some of these

commentators, the State observes, suggested that the

twelve-person rule was also integral to the right to jury

trial, and yet Williams held that the Jury Trial Clause

does not require exactly twelve jurors. See Resp. Br.

20, 22. But that was because other evidence, which the

Court credited, indicated that the twelve-person rule

was really a “historical accident”—a product of “little

more than mystical or superstitious” support for “the

significance of ‘12.’” Williams, 399 U.S. at 87-89. The

State identifies no comparable historical crosscurrents—or even equivocation—respecting the

unanimity requirement.

The Court’s holding in Williams is also entitled to

stare decisis effect. Stare decisis, however, runs the

other way with respect to whether the Sixth

Amendment requires unanimity. See supra at 2-4.

Indeed, Williams itself rested its conclusion that the

Sixth Amendment does not require twelve jurors in

part on the Court’s sense that there was “little reason

to think that the[] goals [of the right to jury trial] are

in any meaningful sense less likely to be achieved

when the jury numbers six, than when it numbers

12—particularly if the requirement of unanimity is

retained.” 399 U.S. at 100 (emphasis added). There is

no basis for backing away from that assumption now.

4. Purposes. Contrary to the State’s argument,

more is needed to carry out the purposes of jury trial

than simply placing some “body of citizens,” using

some indeterminate voting rule, “between the

prosecution and the defendant.” Resp. Br. 31.

a. To begin, the State never explains how a 10-2

vote—or, if all that is needed is the mere presence of a

jury, a 9-3 or 7-5 vote—suffices to protect “against the

corrupt or overzealous prosecutor,” Resp. Br. 31

(quoting Duncan v. Louisiana, 391 U.S. 145, 156

(1968)). Only unanimity can ensure a conviction

comports with the conscience of the community. See

Petr. Br. 28.

b. The State acknowledges that unanimity can

“promote better deliberation by ensuring that the

majority considers and responds to the reasonable

concerns of a holdout” (or two). Resp. Br. 34; see also

McCoy v. North Carolina, 494 U.S. 433, 452 (1990)

(Kennedy, J., concurring in the judgment)

(“Unanimity, it is true, is an accepted, vital

mechanism to ensure that real and full deliberation

occurs in the jury room.”). Indeed, a robust literature—

which the State does not question—supports not only

this proposition but also the related point that the

unanimity requirement produces more accurate

outcomes. See Br. of Law Professors & Social

Scientists 5-12; Br. of ABA 16-23.

The State says this does not matter, though,

because the unanimity requirement sometimes

produces “delay, frustration, and gridlock” in the jury

room. Resp. Br. 34. This criticism misunderstands the

purpose of the Jury Trial Clause. “[L]ike much else in

our Constitution, the jury system isn’t designed to

promote efficiency but to protect liberty.” Haymond,

139 S. Ct. at 2384. Put another way, if a constitutional

criminal procedure rule sometimes staves off rash or

faulty convictions, yet other times merely produces

aggravating friction, then the rule is doing its job. The

beyond-a-reasonable-doubt requirement, for example,

could easily be described this way.

Nor does “reduc[ing] the chance of a hung jury”

(Resp. Br. 31) justify dispensing with the unanimity

requirement. The State says that “nothing” in

Blueford v. Arkansas, 566 U.S. 599 (2012), speaks to

whether holdout jurors should be able to force

deliberation on pain of threatening deadlock. Resp. Br.

35. But, in truth, Blueford explains that “[t]he very

object of the jury system . . . is to secure unanimity by

a comparison of views, and by arguments among the

jurors themselves.” 566 U.S. at 608 (quoting Allen v.

United States, 164 U.S. 492, 501 (1896)). To

accomplish that end, a “single juror[]” must have the

power to insist upon continued conversation. Id.

In any event, the State’s concerns regarding hung

juries are overblown. Unanimity systems result in

only one or two more hung juries for every 100 trials.

See Br. of Law Professors & Social Scientists 14; Resp.

Br. 32.2 Forty-eight states and the federal government

have long shown the incremental costs of dealing with

such mistrials are modest. See Br. of New York et al.

22-25. Furthermore, the authors of the very study the

State cites emphasize that this marginal burden is

well worth the effort. Juries almost never hang unless

“four to five jurors” initially voted to acquit—and when

that happens, there is often good reason to question

the prosecution’s case. Harry Kalven, Jr. & Hans

Zeisel, The American Jury: Notes for an English

Controversy, 48 Chi. B. Rec. 195, 201 (1967); see also

William S. Neilson & Harold Winter, The Elimination

of Hung Juries: Retrials and Nonunanimous Verdicts,

In the State’s telling, nonunanimity systems produce

“forty-five percent” fewer hung juries. Resp. Br. 31 (citation

omitted). But that is merely the difference between three and five

cases per one hundred. See Resp. Br. 32.

25 Int’l Rev. L. & Econ. 1, 17 (2005) (nonunanimous

verdicts are more likely to produce “wrongful

conviction[s]”); Br. of Innocence Projects 11-30.

c. The State does not contest that juries should be

“truly representative of the community,” Smith v.

Texas, 311 U.S. 128, 130 (1940), or that unanimity

rules ensure that the voices of racial minorities are not

discounted or ignored in the jury room. Instead, the

State insists that its nonunanimity rule was not “the

product of racial animus.” Resp. Br. 38. But the record

of the State’s 1898 constitutional convention speaks

for itself. See Petr. Br. 3-5, 31-32. And the State’s

subsequent enactments cannot be divorced from the

rule it established in 1898. The decision whether to

continue an existing practice is always different from

the decision whether to institute a new one.

Besides, what matters most here is effect, not

purpose. As the State itself stresses, petitioner is not

making an equal protection argument. The question

here is simply whether the State’s nonunanimity rule

undermines the objective of securing a verdict from “a

representative cross-section of the community,”

Ballew v. Georgia, 435 U.S. 223, 230 (1978). There is

no doubt it does. See Petr. Br. 33.

d. Nor does the State seem to quarrel with the

proposition that unanimity bolsters public confidence

in the criminal justice system. See Petr. Br. 33; Br. of

New York et al. 20-22. The most the State can say is

that some “other countries” have seen fit over the

years to alter their unanimity rules. Resp. Br. 32-33.

But as this Court has observed, “many of the rights

that our Bill of Rights provides for persons accused of

criminal offenses”—including the “right to a jury

trial”—“are virtually unique to this country.”

McDonald, 561 U.S. at 781. Those rights are

nonetheless “fundamental to our scheme of ordered

liberty and system of justice.” Id. at 764.

At any rate, the foreign developments the State

references do not undermine the salience of unanimity

in this country. As the State’s own source cautions,

relatively few countries share our common-law

tradition of allowing juries to determine guilt. Ethan

J. Lieb, A Comparison of Criminal Jury Decision Rules

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

634-41 (2008), cited in Resp. Br. 32-33. And pertinent

countries that have backed away from strict

unanimity rules have instituted other important

safeguards—including close judicial management of

jury deliberation—in their place. Under the English

and Irish reforms, the jury is first required to

deliberate for at least two hours, while “try[ing] . . . to

reach a unanimous verdict.” Sally Lloyd-Bostock &

Cheryl Thomas, Decline of the “Little Parliament”:

Juries and Jury Reform in England and Wales, 62SPG Law & Contemp. Probs. 7, 36 (1999). Thereafter,

judges have discretion to grant permission to reach a

majority verdict. Id.; see also Juries Act 1974, § 17

(Eng.); Criminal Justice Act 1984, § 25 (Ir.);

O’Callaghan v. Att’y Gen. [1993] 2 I.R. 17, 26 (Ir.).

There is no comparable vehicle for judicial

micromanaging of jury deliberations in America (or

even within Louisiana). Instead, juries—as ad hoc

modules of self-government—are generally allowed to

structure their own internal decision-making

processes. See Petr. Br. 29. Moreover, the American

populace has long viewed this autonomy, coupled with

a mandate of unanimity, as a cornerstone of our

criminal justice system.

II. The unanimity requirement applies to the

states.

The State does not ask the Court “to accord Justice

Powell’s solo opinion in Apodaca precedential force.”

Resp. Br. 47. Neither does Oregon or any of the other

states that appear as amici. Louisiana and Oregon

nevertheless assert that they have settled

expectations in Apodaca’s persistence. The States are

incorrect. Apodaca’s Fourteenth Amendment holding

is an indefensible anomaly, and the doctrine of stare

decisis provides no shelter to the States.

A. The Fourteenth Amendment requires states

to abide by the unanimity requirement.

1. “Louisiana is not defending [its nonunanimity

rule] on the ground that the Sixth Amendment should

not apply to it.” Resp. Br. 49. That is a wise—indeed,

necessary—concession. This Court’s due-process

incorporation jurisprudence makes clear that there

can be “no daylight” between the way the Sixth

Amendment applies to the federal government and to

the states. Timbs, 139 S. Ct. at 687; see also Petr. Br.

34-36, 38-47. Thus, if the Court adheres to the settled

understanding that the Jury Trial Clause requires

unanimity, the Court need go no further to reverse the

judgment below; it ineluctably follows that the Due

Process Clause of the Fourteenth Amendment applies

that requirement to the states.

2. The State maintains the petitioner has not

preserved or adequately briefed his alternative

Fourteenth Amendment arguments. Resp. Br. 43-45.

Neither of the State’s objections has merit.

The question presented—which asks “[w]hether

the Fourteenth Amendment fully incorporates the

Sixth Amendment guarantee of a unanimous verdict,”

Pet. for Cert. i—fairly encompasses both of the

alternative theories petitioner offers. The Privileges or

Immunities Clause is part of the Fourteenth

Amendment and is an alternative “vehicle for

incorporation.” Timbs, 139 S. Ct. at 691 (Gorsuch, J.,

concurring) (emphasis added); see also Br. of Inst. for

Justice 4-10. And the straightforward dictates of the

Due Process Clause itself could be treated as a

“threshold inquiry,” Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 173 n.1 (2009), to be addressed before

turning to whether the Clause requires adherence to

another provision of the Constitution. Furthermore,

“[o]nce a federal claim is properly presented . . . parties

are not limited to the precise arguments they made

below.” Harris Tr. & Sav. Bank v. Salomon Smith

Barney, Inc., 530 U.S. 238, 245 n.2 (2000) (quoting Yee

v. Escondido, 503 U.S. 519, 534 (1992)).

Petitioner also has adequately briefed these

alternative theories. His opening brief set forth the

doctrinal footing for each and explained how

arguments recited at length elsewhere in his briefing

support these theories. Petr. Br. 36-38 (referencing

Petr. Br. 2-3, 8-9, 18-27, and 15-33). Any further

exposition would have been needlessly duplicative.3

The State’s citations to District Attorney’s Office for the

Third Judicial District v. Osborne, 557 U.S. 52 (2009), do not

refute petitioner’s freestanding due process argument. The issue

there was whether to create a new due process right unheard of

at the Founding or when the Fourteenth Amendment was

adopted. The issue here is whether to recognize a core component

of due process firmly entrenched in Anglo-American law for

hundreds of years before the Founding and universally followed

in this country in 1868.

B. The State lacks any valid reliance interest in

Apodaca.

1. In light of its position on the merits, the State

cannot lay claim to reliance interests or any other

stare decisis value. Stare decisis does not apply where

a party declines to defend a past decision and instead

asks the Court to adopt a new legal rule. This is

because “[s]tare decisis is a doctrine of preservation,

not transformation.” Citizens United v. FEC, 558 U.S.

310, 384 (2010) (Roberts, C.J., concurring). Even “new

arguments” in support of the same rule announced in

a prior case “must stand or fall on their own.” Id. at

385. There is “no basis for the Court to give

precedential sway to reasoning it has never accepted.”

Id. at 384; see also Janus v. Am. Fed’n of State, Cty.,

and Mun. Emps., Council 31, 138 S. Ct. 2448, 2472

(2018) (similar).

All the more so here. The State does not merely

offer new reasoning in support of Apodaca’s holding; it

advances a different legal rule altogether. Instead of

arguing that the Fourteenth Amendment does not

require states to abide by the unanimity requirement,

the State asks this Court to hold that the Sixth

Amendment does not require unanimity at all. Put

another way, instead of contending that unanimity is

required in “federal, but not state, criminal

proceedings,” Timbs, 139 S. Ct. at 687 n.1, the State

argues that unanimity is not required in any criminal

proceedings. The notion that Louisiana or Oregon has

some kind of “reliance interest,” Br. of Oregon 6, in

such a potentially groundbreaking holding is at war

with “the rule-of-law values that justify stare decisis

in the first place.” Citizens United, 558 U.S. at 384

(Roberts, C.J., concurring).

2. In any event, the concrete reliance interest

Louisiana and Oregon advance—the interest in

avoiding retrials in cases where they procured

convictions by nonunanimous verdicts—is unavailing.

Apodaca was a splintered decision, and even Justice

Powell conceded his decisive “partial incorporation”

reasoning contravened existing precedent. See Petr.

Br. 41-42. So from the very beginning, convictions

obtained by nonunanimous verdicts rested on

unsteady—indeed, defective—legal footing. Louisiana

and Oregon relied on Apodaca at their own risk.

Nor is there good reason to believe ruling for

petitioner will severely burden the court system. Resp.

Br. 49. The array of barriers to post-conviction relief—

from limitations on retroactivity, to preservation

requirements, to the general bar against second or

successive petitions—are well-known and need not be

catalogued here. Suffice it to say those doctrines

themselves are designed to credit reasonable “reliance

on past judicial precedent.” Lockhart v. Fretwell, 506

U.S. 364, 372-73 (1993). In any habeas litigation this

case triggers, Louisiana and Oregon will be able to

press all of these doctrines—as Louisiana successfully

did when this Court ruled that the State’s reasonabledoubt instruction violated the Due Process Clause. See

Tyler v. Cain, 533 U.S. 656 (2001).

That leaves cases on direct review, and those

numbers are eminently manageable. A recent filing by

the State indicates that there are only 36 cases in

Louisiana on direct review in which defendants are

challenging nonunamimous verdicts. See Motion for

Expedited Review at Ex. A, State v. Hodge, No. 2019KA-568 (La. July 18, 2019). To be sure, the State has

obtained other such convictions since this Court

granted certiorari here (and it may obtain more in

coming months). See id.; Br. of Oregon 12 (indicating

Oregon prosecutors will seek nonunanimous verdicts

until “this Court [issues its] decision in this case”). But

to preserve this issue in any such case, defendants

must request unanimous verdicts. There is nothing

preventing the States—now that they are on red alert

that Apodaca is living on borrowed time—from

consenting to such requests. If they decline to do so, it

hardly seems unfair for them to absorb the

consequences.

Finally, whatever exactly may unfold with respect

to past convictions, the State is wrong that “[t]here are

no countervailing reasons that justify imposing a

unanimity requirement on States.” Resp. Br. 49. As

petitioner has explained, the imperative of requiring

states to honor our most fundamental principles has

time and again justified overruling prior cases and

incorporating Bill of Rights protections against the

states. See Petr. Br. 43-45. That the State declines

even to offer any Fourteenth Amendment theory for

continuing to be exempted from the unanimity

principle only underscores the imperative here.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment below.

Respectfully submitted,