Petition for Writ of Certiorari — Evangelisto Ramos, Petitioner v. Louisiana
Supreme Court briefSep 7, 2018
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NO. ____________
IN THE
____________
EVANGELISTO RAMOS,
PETITIONER,
V.
STATE OF LOUISIANA ,
RESPONDENT.
____________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
LOUISIANA COURT OF APPEAL, FOURTH CIRCUIT
____________
PETITION FOR WRIT OF CERTIORARI
____________
G. Ben Cohen*
Shanita Farris
Erica Navalance
The Promise of Justice Initiative
636 Baronne Street
New Orleans, LA 70113
(504) 529-5955
bcohen@thejusticecenter.org
* Counsel of Record
QUESTION PRESENTED
Whether the Fourteenth Amendment fully incorporates the Sixth
Amendment guarantee of a unanimous verdict?
i
PARTIES TO THE PROCEEDING
The petitioner is Evangelisto Ramos, the defendant and defendant-appellant
in the courts below. The respondent is the State of Louisiana, the plaintiff and
plaintiff-appellee in the courts below.
ii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................................................................... i
PARTIES TO THE PROCEEDING ..........................................................................ii
TABLE OF CONTENTS ........................................................................................... iii
TABLE OF AUTHORITIES ....................................................................................... 1
PETITION FOR A WRIT OF CERTIORARI .......................................................... 3
OPINIONS BELOW .................................................................................................... 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 4
STATEMENT OF THE CASE .................................................................................... 5
SUMMARY OF THE ARGUMENT ........................................................................... 7
I.
This Court Should Grant Certiorari to Consider Whether
Apodaca v. Oregon Should No Longer Stand. .................................................... 10
A.
The Historical Record is Clear that Unanimity Is an Essential
Component of the Jury Trial Right. ................................................................. 11
B.
Apodaca and Johnson Were Fractured Opinions Without a Coherent
Justification for Non-Unanimous Verdicts, Which Have Subsequently
been Disavowed and Unworthy of Stare Decisis.............................................. 15
1.
This Court has Rejected the Apodaca Concept that Constitutional
Rights Should be Assessed by their Functional Purpose .................................... 15
2.
Since Apodaca, this Court Has Rejected the Concept of Partial
Incorporation ........................................................................................................ 18
3.
The Fractured Nature of Apodaca Undermines its Continued
Vitality.
............................................................................................................ 19
iii
C.
The Racist Origins and Continued Impact of the Non-Unanimous Jury
Provide Strong Justification for Ensuring that the Fourteenth
Amendment Fully Incorporates the Sixth Amendment. ................................. 22
D. The Pending Ballot Initiative Does Not Undermine the Justiciability of
This Petition. ..................................................................................................... 27
CONCLUSION ........................................................................................................... 28
CERTIFICATE OF SERVICE ................................................................................. 29
APPENDICES
APPENDIX A: State v. Ramos, 231 So. 3d 44, 2017 La. App. LEXIS 2013, No. 2016KA-1199, 2017 WL 4988658 (La. App. 4 Cir. 11/02/17).
APPENDIX B: State v. Ramos, 2017-KO-2133 (La. 6/15/18), 2018 La. LEXIS 1586
iv
TABLE OF AUTHORITIES
Cases
Aguilar v. Texas, 378 U.S. 108 (1964) ......................................................................... 19
Benton v. Maryland, 395 U.S. 784 (1969) ................................................................... 19
Crawford v. Washington, 541 U.S. 36 (2004).............................................................. 16
Hunter v. Underwood, 471 U.S. 222, 229 (1985) ........................................................ 24
Johnson v. Louisiana, 406 U.S. 356 (1972) ................................................................ 10
Ker v. California, 374 U.S. 23 (1963) .......................................................................... 19
Mapp v. Ohio, 367 U.S. 643 (1961) ............................................................................. 19
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 19, 21
Ohio v. Roberts, 448 U.S. 56 (1980)....................................................................... 11, 16
Pointer v. Texas, 380 U.S. 400 (1965) ......................................................................... 19
Seminole Tribe v. Florida, 517 U.S. 44 (1996) ............................................................ 20
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ......................................... 16, 17
Wallace v. Jaffree, 472 U.S. 38 (1985)......................................................................... 19
Walton v. Arizona, 497 U.S. 639 (1990) ...................................................................... 11
Statutes
28 U.S.C. § 1257(a) ........................................................................................................ 3
La. C.Cr.P. art. 782(A) ................................................................................................... 4
U.S. Const. Amend. VI................................................................................................... 4
U.S. Const. Amend. XIV ................................................................................................ 4
1
Other Authorities
Aliza Kaplan, Amy Saack, Overturning Apodaca v. Oregon Should Be Easy:
NonUnanimous Verdicts In Criminal Cases Undermine The Credibility Of Our
Justice System, Vol. 95 Oregon Law Review No. 1, 3 (February 2017) ..................... 25
Angela A. Allen-Bell, These Jury Systems Are Vestiges of White Supremacy,
Washington Post, 9/22/2017 .................................................................................. 22, 25
Associated Press, Bid to strike Louisiana's Jim Crow-era jury law advances in state
House
NOLA.com
(2018),
http://www.nola.com/crime/index.ssf/2018/04/bid_to_strike_louisianas_jim_c.html
(last visited May 23, 2018............................................................................................ 23
C. Vann Woodward, Origins of the New South, 1877-1913 ....................................... 24
Robert J. Smith, Bidish J. Sarma, How and Why Race Continues to Influence the
Administration of Criminal Justice, Vol. 72 No. 2 La. Law Rev. 361, 375 (2012) .... 24
S. Hackney, Populism to Progressivism in Alabama 147 (1969 ................................ 23
Thomas Aiello, Jim Crow’s Last Stand, Nonunanimous Criminal Jury Verdicts in
Louisiana, LSU Press, 2015 ........................................................................................ 22
Thomas Aiello, Jim Crow’s Last Stand: Non-Unanimous Criminal Jury Verdicts in
Louisiana, Louisiana State University Press, Baton Rouge, Louisiana, 2015 ......... 24
W. Billings & E. Haas, In Search of Fundamental Law: Louisiana’s Constitutions,
1812-1874, The Center for Louisiana Studies (1993), pp. 93-109 ............................. 22
2
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Evangelisto Ramos, respectfully petitions for a writ of certiorari to
the Louisiana Fourth Circuit Court of Appeal in State v. Ramos, No. 2016-1199,
2017 WL 4988658 (La. App. 4 Cir. 11/02/17).
OPINIONS BELOW
The judgment of the Louisiana Fourth Circuit Court of Appeal is an
unpublished opinion reported at State v. Ramos, 231 So. 3d 44, 2017 La. App.
LEXIS 2013, 2017-1199 (La.App. 4 Cir. 11/02/17), attached as Appendix “A”. The
Louisiana Supreme Court’s order denying review of that decision is reported at
State v. Ramos, 2017-KO-2133 (La. 6/15/18), 2018 La. LEXIS 1586, and attached as
Appendix “B”.
JURISDICTIONAL STATEMENT
The judgment and opinion of the Louisiana Fourth Circuit Court of Appeal
were entered on November 2, 2017. The Louisiana Supreme Court denied review of
that decision on June 15, 2018. See Appendix A and B. This Court’s jurisdiction is
pursuant to 28 U.S.C. § 1257(a).
3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution provides, in
pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .” U.S. Const. Amend. VI.
The Fourteenth Amendment to the United States Constitution provides, in
pertinent part:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
U.S. Const. Amend. XIV.
Article 782(A) of the Louisiana Code of Criminal Procedure provides, in
pertinent part: “Cases in which punishment is necessarily confinement at
hard labor shall be tried by a jury composed of twelve jurors, ten of whom
must concur to render a verdict.” La. C.Cr.P. art. 782(A).
.
4
STATEMENT OF THE CASE
The petitioner, Evangelisto Ramos, was charged with second-degree murder.
He pled “not guilty” and decided to be tried by a twelve-member jury. On June 22,
2016, Ramos was placed on trial. After deliberating, ten jurors found that that the
government had proven its case against Mr. Ramos. However, two jurors concluded
that the government had failed to prove Mr. Ramos guilty beyond a reasonable
doubt.
Notwithstanding the different jurors’ findings, under Louisiana’s non-
unanimous jury verdict law, a guilty verdict was entered.
Mr. Ramos was
sentenced to spend the remainder of his life in prison without the possibility of
parole.
With the assistance of a court-appointed lawyer, Mr. Ramos appealed his
case to the Louisiana Fourth Circuit Court of Appeal. His appellate counsel argued
that the government’s case was based on circumstantial evidence, and that the
government failed to exclude every reasonable hypothesis of Mr. Ramos’ innocence.
Counsel argued that there was insufficient evidence to support the conviction. Pet.
App. “A” at 9a. Moreover, in a pro se supplemental appeal brief, Mr. Ramos argued
that his conviction by a non-unanimous jury verdict violated his federal
constitutional rights. See Pet. App. “A” at 9a. The Louisiana Fourth Circuit Court
of Appeal rejected the argument, concluding, “[N]on-unanimous twelve-person jury
verdicts are constitutional, ....” Pet. App. “A” at 9a. Mr. Ramos then pro se sought
review from the Louisiana Supreme Court, which denied review without reasons.
5
State v. Ramos, 2017-KO-2133 (La. 6/15/18), 2018 La. LEXIS 1586. Pet. App. “B at
10b”.
The State’s case against Mr. Ramos is based on purely circumstantial
evidence. The prosecution did not present any eyewitnesses to the crime.
On
appeal, the Court of Appeal noted: “In the case sub judice, some of the evidence may
be susceptible of innocent explanation.” Pet. App. “A” at 7a.
According to the evidence presented at trial, Trinece Fedison’s body was
found on November 26, 2014, in a trash can in a wooded area in New Orleans. Her
body was found by a New Orleans Code Enforcement Officer. Jerome Fedison, the
nephew of the victim, saw the victim the previous day standing on the corner with
two men he described as Spanish men.
He told the jury that he observed Ms.
Fedison go inside the house with one of the Spanish men, he identified as Mr.
Ramos, and that he did not see her again. Pet. App. “A” at 4a.
The morning the
victim’s body was found, Mr. Fedison saw Mr. Ramos leaving the house he had last
seen his aunt enter. He approached Mr. Ramos and stated, “I know what you did.
You gonna feel me partner, for real.”
Afraid for his life, Mr. Ramos left New Orleans and went to Houma, where he
stayed in one of the trailers available for employees who works at Romero Pappa
Boats. Pet. App. “A” at 4a. When Ramos arrived at work, he reported the threats he
had received to his manager, Darryl Scheuermann. Mr. Ramos explained to Mr.
Scheuermann that he was sexually involved with a prostitute, Ms. Fedison. He told
Mr. Schuermann that when Ms. Fedison was leaving his house, he saw two black
6
men harassing her. Pet. App. “A” at 4a. After the victim’s body was found, “one of
her family members approached him on the street and threatened to kill him.” Mr.
Scheuermann contacted the lead detective, who arranged an interview with Mr.
Ramos. During the interview, Mr. Ramos told the detective that he had sex with
Ms. Fedison. Pet. App. “A” at 4a.
Mr. Ramos’ DNA was found in the victim’s vagina. Pet. App. “A” at 5a. Also,
his DNA was found on the handles of the trash can the victim was found in. Pet.
App. “A” at 5a.
Ramos’ explanation for his DNA being on the trash can was that
“he had touched the garbage can lid when he placed a bag of garbage in the church
garbage can immediately after having sex with the victim.” Pet. App. “A” at 5a.
Mr. Ramos told the detective that he had last seen the victim when she was leaving
his house. As the victim was leaving, men in a black Buick pulled up and called her
name. She got in the vehicle and they drove off. Pet. App. “A” at 5a.
SUMMARY OF THE ARGUMENT
The law is clear: under the Sixth Amendment, a unanimous jury is required.
The vast majority of the Bill of Rights have been fully incorporated and made
applicable to the states through the Fourteenth Amendment.
The Fourteenth
Amendment should incorporate the Sixth Amendment’s guarantee of a unanimous
jury because a) this Court has made clear that the guarantees in the Bill of Rights
must be protected regardless of their current functional purpose; b) this Court has
rejected the notion of partial incorporation or watered down versions of the Bill of
Rights, and c) Louisiana’s non-unanimous jury rule was adopted as part of a
7
strategy by the Louisiana Constitutional Convention of 1898 to establish white
supremacy.
First, this Court has made clear that the guarantees in the Bill of Rights
must be protected regardless of their current functional purpose, based upon the
historical origins of the constitutional protection. This Court has since rejected the
hitherto accepted premise of Apodaca: that constitutional rights should be
confirmed based upon their functional purpose rather than their historical origins.
See Crawford v. Washington, 541 U.S. 36 (2004); Giles v. California, 128 S. Ct. 2678
(2008).
Second, this Court has rejected the notion of partial incorporation or watered
down versions of the Bill of Rights. This Court has rejected “‘the notion that the
Fourteenth Amendment applies to the States only a watered-down, subjective
version of the individual guarantees of the Bill of Rights,’ stating that it would be
‘incongruous’ to apply different standards ‘depending on whether the claim was
asserted in a state or federal court.’” McDonald v. City of Chicago, 561 U.S. 742, 765
(2010) (citing Malloy v. Hogan, 378 U.S. 1, 10-11 (1964)).
Finally, even if there were an element of the Bill of Rights that need not fully
transfer to the states, jury unanimity would not be such an element. Louisiana’s
non-unanimous jury rule was adopted during the 1898 Louisiana Constitutional
Convention, where the entire point of the Convention was to limit African-American
participation in the democratic process and to “perpetuate the supremacy of the
Anglo-Saxon race in Louisiana.” Official Journal of the Proceedings of the
8
Constitutional Convention of the State of Louisiana, 8-9 (1898) [hereinafter
“Journal”].
The Fourteenth Amendment was supposed to protect against these
racist purposes, and the rational for incorporation is at its zenith under these
circumstances.
9
REASONS FOR GRANTING THE WRIT
I.
This Court Should Grant Certiorari to Consider Whether Apodaca
v. Oregon Should No Longer Stand.
Louisiana and Oregon are now the only states that allow for non-unanimous
jury verdicts. These provisions were upheld as constitutional in Apodaca v. Oregon,
406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972). Apodaca’s
plurality was made up of two distinct, inconsistent, and practically contradictory
perspectives, both of which have since been disavowed.
First, the four-person
plurality recognized that the common law long-required juries to return unanimous
verdicts, Apodaca, at 407-08 & n.2, but relied “upon the function served by the jury
in contemporary society,” 406 U.S. at 410, to conclude that unanimity “was not of
constitutional stature” in criminal cases. 406 U.S. at 406.
Second, Justice Powell offered a never-used-before-never-used-since theory of
partial incorporation of the Sixth Amendment. Justice Powell believed that the
Sixth Amendment required unanimity at the Founding, and in federal cases, but
opined that the protections guaranteed by the Fourteenth Amendment were less
than those offered by the Sixth Amendment. Justice Powell’s curious view on
incorporation has also been exploded by this Court’s recent holding in McDonald.
This Court rejected the City’s claim that Apodaca endorsed a “two-track approach to
incorporation,” id. at 3035 n.14.
There has been a sea change in constitutional exegesis with regard to both
the application of the Bill of Rights to the states and whether constitutional rights
are merely functional protections since the opinions of Apodaca v. Oregon, 406 U.S.
10
404 (1972), Ohio v. Roberts, 448 U.S. 56 (1980), and Walton v. Arizona, 497 U.S. 639
(1990).
A. The Historical Record is Clear that Unanimity Is an Essential
Component of the Jury Trial Right.
The historical record is clear that unanimity was an essential component of
what was conceived of when the Constitution referred to juries. Indeed, In Johnson
v. Louisiana and Apodaca, all nine justices agreed that at the Founding, unanimity
was required. See Apodaca 406 U.S. at 407-08 (plurality opinion) (White J., Burger
C.J., Blackmun J., Rehnquist J., joining) (“Like the requirement that juries consist
of 12 men, the requirement of unanimity arose during the Middle Ages and had
become an accepted feature of the common-law jury by the 18th century”); see also
Johnson, 406 U.S. at 393 (Douglas, J., Brennan, J., Stewart, J., Marshall, J.,
dissenting) (“The requirements of a unanimous jury verdict in criminal cases and
proof beyond a reasonable doubt are so embedded in our constitutional law and
touch so directly all the citizens and are such important barricades of liberty that if
they are to be changed they should be introduced by constitutional amendment.”)
see id. at 369 (Powell, J., concurring) (“In an unbroken line of cases reaching back
into the late 1800's, the Justices of this Court have recognized, virtually without
dissent, that unanimity is one of the indispensable features of federal jury trial.”).
As with the reasonable-doubt standard, a jury unanimity requirement “dates
at least from our early years as a Nation.” In re: Winship, 397 U.S. 358, 361 (1970),
and in fact from even earlier. Influential British jurists consistently included jury
unanimity as a defining characteristic of the trial by jury. For example, Sir
11
Matthew Hale wrote that, “[t]he 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 . . . .” 1 Hale, The History of the
Pleas of the Crown 33 (1736).
In his Commentaries, Sir William Blackstone noted the critical role a
unanimity requirement can play in ensuring that the Crown not wrongly seize an
individual’s liberty. Blackstone first observed the special risk of “violence and
partiality of judges appointed by the crown” in criminal cases, and the attendant
risk of overzealous prosecution if the power to prosecute were “exerted without
check or control.” 4 W. Blackstone, Commentaries on the Laws of England 343
(1769). Out of concern for those dangers, “[o]ur law has wisely placed this strong
and two-fold barrier, of a presentment and a trial by jury, between the liberties of
the people, and the prerogative of the crown.” Id. But according to Blackstone, it
was not merely the existence of the jury that provided that barrier; it was the
additional requirement “that the truth of every accusation . . . should afterwards be
confirmed by the unanimous suffrage of twelve of his equals and neighbours.” Id.
Perhaps for this reason, Blackstone explained that it is the most transcendent
privilege which any subject can enjoy, or wish for, that he cannot be affected either
in his property, his liberty, or his person, but by the unanimous consent of twelve of
his neighbors and equals. 3 W. Blackstone, Commentaries on the Laws of England
379 (1769).
12
The Framers carried this perspective with them in crafting the Sixth
Amendment. In its original form, the proposed Amendment provided that, “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. . . .” 1 Annals of Cong. 435 (1789). Although the House ratified that
Amendment
in
substantially
similar
form,
it
underwent
considerable
transformation in the Senate, which was “inflexible in opposing a definition of the
locality of Juries. The vicinage they contend is either too vague or too strict a term; .
. .” Williams v. Florida, 399 U.S. 78, 95 (1970) (emphasis in original) (quoting 1
Letters and Other Writings of James Madison 492-93 (1865)). The debate over the
vicinage requirement ultimately led to the more broadly worded Sixth Amendment
ratified in 1791, but the historical record contains scant evidence that there was
any debate regarding the unanimity requirement. As this Court has acknowledged,
however, losing the explicit unanimity requirement “is concededly open to the
explanation that the ‘accustomed requisites’ were thought to be necessarily included
in the concept of a ‘jury.’” Williams, 399 U.S. at 97.
The subsequent historical record suggests that this explanation is correct. In
his Commentaries, Justice Joseph Story wrote, “A trial by jury is generally
understood to mean . . . a trial by jury of twelve men . . . who must unanimously
concur in the guilt of the accused . . . . Any law, therefore, dispensing with any of
these requisites, may be declared unconstitutional.” 2 Joseph Story, Commentaries
on the Constitution of the United States 559 n. 2 (1891). In a series of lectures on the
13
Constitution, Justice John Marshall Harlan asked “whether a state may dispense
with a petit jury or modify the trial as it was at the time of the adoption of the
Constitution? I answer unhesitatingly that no court of the United States . . . can
sentence any man upon the return of a verdict of jury in which all the jury have not
concurred.” Frye, et al., Justice John Marshall Harlan: Lectures on Constitutional
Law, 81 Geo. Was. L. Rev. 12A, 253 (2013). Indeed, Justice Harlan went even
further, in language reminiscent of Blackstone’s appreciation of the importance of a
unanimity requirement:
The glory of our civilization is that we do have some regard for human
life and human liberty when a man’s life is at stake, or when his
liberty is put at stake. I have heard that three-fourths might be
sufficient to agree to a verdict. I think that a unanimous verdict is
required under this Constitution in the Courts of the United States.
Id. at 252.
This Court’s own precedent provides support for this conclusion as well. After
recognizing the historical roots of jury unanimity as one of the essential components
of trial by jury, this Court held it “must consequently be taken that the word ‘jury’
and the words ‘trial by jury’ were placed in the Constitution of the United States
with reference to the meaning affixed to them in the law as it was in this country
and in England at the time of the adoption of that instrument; . . . .” Thompson v.
Utah, 170 U.S. 343, 350 (1898).1
1 One year earlier, this Court also noted, in the civil context, that “unanimity was one of
the peculiar and essential features of trial by jury at the common law. No authorities are
needed to sustain this proposition. Whatever may be true as to legislation which changes
any mere details of a jury trial, it is clear that a statute which destroys this substantial and
essential feature thereof is one abridging the right.” American Pub. Co. v. Fisher, 166 U.S.
464, 468 (1897). Surely, if unanimity was “substantial and essential” in civil cases, it was
14
B. Apodaca and Johnson Were Fractured Opinions Without a
Coherent Justification for Non-Unanimous Verdicts, Which Have
Subsequently been Disavowed and Unworthy of Stare Decisis.
Principles of stare decisis are at their nadir where a case depends upon a
plurality opinion in which no five justices are able to muster a controlling view
concerning the law. Additionally, the inconsistent and practically contradictory
perspectives in the Apodaca plurality have since been disavowed. First, Apodaca’s
four-person plurality concluded that unanimity “was not of constitutional stature”
in criminal cases, 406 U.S. at 406, although it recognized the long-standing common
law requirement for juries to return unanimous verdicts, 406 U.S. at 407-08 & n.2.
Second, Justice Powell’s concept of “partial incorporation” can no longer be
considered good law.
1. This Court has Rejected the Apodaca Concept that
Constitutional Rights Should be Assessed by their
Functional Purpose
This Court has subsequently broadly rejected the idea that the Sixth
Amendment derives its meaning from functional assessments, and has strictly
adhered to historical origins of the amendment. See Crawford v. Washington, 541
U.S. 36 (2004); Giles v. California, 128 S. Ct. 2678 (2008).
This Court no longer measures the value of a constitutional right by the
function that it serves. While the Apodaca plurality focused “upon the function
served by the jury in contemporary society,” 406 U.S. at 410, this Court recently has
made clear that the Sixth Amendment derives its meaning not from functional
even more important in criminal cases, where individuals face deprivation of property, life,
and liberty.
15
assessments of the Amendment’s purposes, but rather from the original
understanding of the guarantees contained therein. In a line of cases beginning
with Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court has eschewed a
functional approach to the right to jury trial in favor of the “practice” of trial by jury
as it existed “at common law.” Id. at 480. In the course of holding that all factors
that increase a defendant’s potential punishment must be proven to a jury beyond a
reasonable doubt, this Court emphasized that “[u]ltimately, our decision cannot
turn on whether or to what degree trial by jury impairs the efficiency or fairness of
criminal justice.” Blakely, 542 U.S. at 313. Rather, the controlling value is “the
Framers’ paradigm for criminal justice.” Id.
Similarly, in Crawford v. Washington, 541 U.S. 36 (2004), this Court
abandoned the functional, reliability-based conception of the Confrontation Clause
conceived in Ohio v. Roberts, 448 U.S. 56 (1980), in favor of the common-law
conception of the right known to the Framers. In Giles v. California, 554 U.S. 353
(2008), this Court continued that trend, explaining that “[i]t is not the role of courts
to extrapolate from the words of the Sixth Amendment to the values behind it, and
then to enforce its guarantees only to the extent they serve (in the court’s views)
those underlying values. The Sixth Amendment seeks fairness indeed—but seeks it
through very specific means . . . that were the trial rights of Englishmen.” Id. at
375. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), this Court similarly
rejected an approach to the right to counsel that would have “abstract[ed] from the
right to its purposes” and left it to this Court whether to give effect “to the details.”
16
Id. at 145 (quotation omitted). This pronounced shift in constitutional exegesis—the
return to historical analysis—calls Apodaca into serious question.
Moreover, evincing this shift, this Court’s Sixth Amendment jurisprudence
has repeatedly eschewed a functional approach, holding firm the applicability of the
longstanding tenet of criminal jurisprudence that the “truth of every accusation be
confirmed by the unanimous suffrage of twelve of his equals and neighbors.” S.
Union Co. v. United States, 567 U.S. 343, 344 (2012) (“The rule that juries must
determine facts that set a fine's maximum amount is an application of the “two
longstanding tenets of common-law criminal jurisprudence” on which Apprendi is
based. First, “the 'truth of every accusation' against a defendant 'should afterwards
be confirmed by the unanimous suffrage of twelve of his equals and neighbours.'”);
United States v. Booker, 543 U.S. 220, 238, (2005) (“Regardless of whether Congress
or a Sentencing Commission concluded that a particular fact must be proved in
order to sentence a defendant within a particular range, "[t]he Framers would not
have thought it too much to demand that, before depriving a man of [ten] more
years of his liberty, the State should suffer the modest inconvenience of submitting
its accusation to 'the unanimous suffrage of twelve of his equals and
neighbours,'…”); Blakely v. Washington, 542 U.S. 296, 301, (2004) (“This rule
reflects two longstanding tenets of common-law criminal jurisprudence: that the
"truth of every accusation" against a defendant "should afterwards be confirmed by
the unanimous suffrage of twelve of his equals and neighbours,"…”); Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000) (“As we have, unanimously, explained, the
17
historical foundation for our recognition of these principles extends down centuries
into the common law. "To guard against a spirit of oppression and tyranny on the
part of rulers," and "as the great bulwark of [our] civil and political liberties," …
trial by jury has been understood to require that "the truth of every accusation,
whether preferred in the shape of indictment, information, or appeal, should
afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's]
equals and neighbours.”); United States v. Gaudin, 515 U.S. 506, 510-11, 115 S. Ct.
2310, 2313-14 (1995) (“Blackstone described "trial by jury" as requiring that "the
truth of every accusation, whether preferred in the shape of indictment,
information, or appeal, should afterwards be confirmed by the unanimous suffrage
of twelve of [the defendant's] equals and neighbors . . . .”); id at 511 (“Justice Story
wrote that the "trial by jury" guaranteed by the Constitution was "generally
understood to mean . . . 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." This right was designed "to guard against a spirit of oppression and tyranny
on the part of rulers," and "was from very early times insisted on by our ancestors in
the parent country, as the great bulwark of their civil and political liberties.”).
2. Since Apodaca, this Court Has Rejected the Concept of
Partial Incorporation
Second, Justice Powell offered a theory of partial incorporation of the Sixth
Amendment, unique to Justice Powell, not found anywhere else in this Court’s
jurisprudence. Justice Powell believed that the Sixth Amendment required
unanimity at the Founding, and in federal cases, but that the protections
18
guaranteed by the Sixth Amendment were more expansive that those of the
Fourteenth Amendment. This Court’s holding in McDonald now makes clear that
Justice Powell’s creative view on incorporation is not constitutionally acceptable.
This Court rejected the City’s claim that Apodaca endorsed a “two-track approach to
incorporation,” id. at 3035 n.14. Instead, the Court left no doubt that it “abandoned
the notion that the Fourteenth Amendment applies to the States only a watereddown, subjective version of the individual guarantees of the Bill of Rights.” Id. at
3035 (internal quotation marks and citation omitted). The Court has made clear
that “[t]he relationship between the Bill of Rights’ guarantees and the States must
be governed by a single, neutral principle”: “incorporated Bill of Rights Protections
are to be enforced against the States under the Fourteenth Amendment according
to the same standards that protect those personal rights against federal
encroachment.” McDonald v. City of Chicago, 561 U.S. 742, 765, (2010) (citing inter
alia, Mapp v. Ohio, 367 U.S. 643, 655-56 (1961); Ker v. California, 374 U.S. 23, 3334 (1963); Aguilar v. Texas, 378 U.S. 108, 110 (1964); Pointer v. Texas, 380 U.S. 400,
406 (1965); Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Benton v. Maryland, 395
U.S. 784, 794-95 (1969); Wallace v. Jaffree, 472 U.S. 38, 48-49 (1985)).
3. The Fractured Nature
Continued Vitality.
of
Apodaca
Undermines
its
Nine justices have essentially agreed that unanimity was required at the
Founding. Eight justices agreed that the Fourteenth Amendment incorporated the
full force of the Sixth Amendment. Five justices agreed that the Sixth Amendment
currently required adherence to its historical origins. And yet the odd configuration
19
of opinions resulted in a rule permitting non-unanimous verdicts in the States.
Apodaca, therefore, is entitled only to “questionable precedential value.” Seminole
Tribe v. Florida, 517 U.S. 44, 66 (1996) (overturning prior decision in part because a
majority of the Court had “expressly disagreed with the rationale of the plurality”
(the concurring opinion providing the fifth vote, as well as the dissent)).
Justice Powell’s peculiar and atypical view of partial incorporation led the
Court to rule by a bare majority that States may convict individuals of crimes
notwithstanding one or two jurors voting “not guilty.” As Justices Douglas,
Brennan, Marshall and Stewart observed, dissenting in Johnson, “[t]he result of
today's decisions is anomalous: though unanimous jury decisions are not required in
state trials, they are constitutionally required in federal prosecutions. How can that
be possible when both decisions stem from the Sixth Amendment?” 406 U.S. at 383.
As Justice Brennan summed up the situation:
Readers of today’s opinions may be understandably puzzled why
convictions by 11-1 and 10-2 jury votes are affirmed in [Apodaca],
when a majority of the Court agrees that the Sixth Amendment
requires a unanimous verdict in federal criminal jury trials, and a
majority also agrees that the right to jury trial guaranteed by the Sixth
Amendment is to be enforced against the States according to the same
standards that protect that right against federal encroachment. The
reason is that while my Brother Powell agrees that a unanimous
verdict is required in federal criminal trials, he does not agree that the
Sixth Amendment right to a jury trial is to be applied in the same way
to State and Federal Governments.
Johnson, 406 U.S. at 395 (Brennan, J. dissenting).
As this Court observed in
McDonald, the odd accounting of votes undermines the coherence of the Apodaca
and Johnson opinions:
20
In Apodaca, eight Justices agreed that the Sixth Amendment applies
identically to both the Federal Government and the States. . . .
Nonetheless, among those eight, four Justices took the view that the
Sixth Amendment does not require unanimous jury verdicts in either
federal or state criminal trials . . . and four other Justices took the view
that the Sixth Amendment requires unanimous jury verdicts in federal
and state criminal trials . . .
Justice Powell's concurrence in the judgment broke the tie, and he
concluded that the Sixth Amendment requires juror unanimity in
federal, but not state, cases. Apodaca, therefore, does not undermine
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. It is significant to note that the four plurality justices
who held that the Sixth Amendment did not require unanimity did not do so
because of a different view of the original history (compare for instance Justice
Stevens’ historical understanding of the Second Amendment in Heller with Justice
Scalia’s historical understanding of the Second Amendment), but rather observed,
“[o]ur inquiry must focus upon the function served by the jury in contemporary
society.” Apodaca, at 410 (plurality of White, J., Blackmun, J., Rehnquist, J., and
Burger, C.J.).
Although Louisiana courts continue to use this Court’s decision in Apodaca to
justify non-unanimous jury verdicts, this Court’s recent Sixth Amendment
jurisprudence renders Apodaca—both Justice Powell’s partial incorporation theory
and the plurality’s focus on the function of the jury in contemporary society—
impossible to defend. In fact, this Court’s recent Sixth Amendment decisions have
rejected both theoretical predicates on which the Apodaca plurality opinion is
based.
21
C. The Racist Origins and Continued Impact of the Non-Unanimous
Jury Provide Strong Justification for Ensuring that the
Fourteenth Amendment Fully Incorporates the Sixth Amendment.
The opening address at the 1898 Louisiana Constitutional Convention made
clear that the point of the entire Convention was to limit African-American
participation in the democratic process and to “perpetuate the supremacy of the
Anglo-Saxon race in Louisiana.” Official Journal of the Proceedings of the
Constitutional Convention of the State of Louisiana, 8-9 (1898) [hereinafter
“Journal”].
Closing the Convention, Hon. Thomas J. Semmes celebrated the
putatively successful “mission” of the delegates “to establish the supremacy of the
white race in this state.” Id. at 374.
When discussing the provisions adopted to prevent African-American
suffrage, a like-minded delegate explained:
[T]he Supreme Court of the United States in the Wilson case, referring
to that, said that they had swept the field of expedients, but they were
permissible expedients, and that is what we have done in order to keep
the negro from exercising the suffrage. What care I whether the test
we have put be a new one or an old one? What care I whether it be
more or less ridiculous or not? Doesn’t it meet the case? Doesn’t it let
the white man vote, and doesn’t it stop the negro from voting, and isn’t
that what we came here for? (Applause)
Constitutional Convention of the State of Louisiana, supra, at 380.
22
In his closing remarks, President Kruttschnitt bemoaned that the delegates
had been constrained by the Fifteenth Amendment such that they could not provide
what they would have wished: "universal white manhood suffrage and the exclusion
from the suffrage of every man with a trace of African blood in his veins." Id. at 380.
He went on to proclaim:
I say to you, that we can appeal to the conscience of the nation, both
judicial and legislative and I don’t believe that they will take the
responsibility of striking down the system that we have reared in order
to protect the purity of the ballot box and to perpetuate the supremacy
of the Anglo-Saxon race in Louisiana.
Id. at 381.
The proponents of those rules sometimes tried to justify them under the guise
of cost-saving devices, but commentators have directly linked the diminution of the
jury trial right to the Convention’s larger effort “to consolidate Democratic power in
the hands of the ‘right people,’ thereby bypassing the poorer sorts, just as the
suffrage provision did.” W. Billings & E. Haas, In Search of Fundamental Law:
Louisiana’s Constitutions, 1812-1874, The Center for Louisiana Studies (1993), pp.
93-109. See also Thomas Aiello, Jim Crow’s Last Stand, Nonunanimous Criminal
Jury Verdicts in Louisiana, LSU Press, 2015; Angela A. Allen-Bell, These Jury
Systems Are Vestiges of White Supremacy, Washington Post, 9/22/2017. The 1898
Convention substantially diminished the Sixth Amendment jury trial guarantee
though non-unanimity rules, the elimination of misdemeanor juries, and the
reduction of jury size for lesser felonies.
In recent debates in the Louisiana Legislature, John DeRosier, district
attorney in Calcasieu Parish, told the panel that the law's roots in white supremacy
23
are not sufficient enough to change these historically racist provisions: “I've heard a
lot about this system begin adopted as a vestige of slavery. I have no reason to
doubt that. I'm not proud of that, that that's the way it started, but it is what it
is…” Associated Press, Bid to strike Louisiana's Jim Crow-era jury law advances in
state
House
NOLA.com
(2018),
http://www.nola.com/crime/index.ssf/2018/04/bid_to_strike_louisianas_jim_c.html
(last visited May 23, 2018).
This Court has previously confronted the uncorrected problems of the 1898
Constitutional Convention. It held:
The need to eradicate past evil effects and to prevent the continuation
or repetition in the future of the discriminatory practices shown to be
so deeply engrained in the laws, policies, and traditions of the State of
Louisiana, completely justified the District Court in entering the
decree it did and in retaining jurisdiction of the entire case to hear any
evidence of discrimination in other parishes and to enter such orders
as justice from time to time might require.
Louisiana v. United States, 380 U.S. 145, 156, 85 S. Ct. 817, 823 (1965).
Whatever the views on partial incorporation of the Fourteenth Amendment
in other contexts, the Sixth Amendment’s guarantee of a unanimous jury verdict is
not the location to provide a watered down version of the Bill of Rights. Louisiana’s
non-unanimity rule uniquely strikes at the heart of equality and citizenship. Like
Alabama’s Constitutional Convention of 1901, the Louisiana Constitutional
Convention of 1898 “was part of a movement that swept the post-Reconstruction
South to disenfranchise blacks.” See Hunter v. Underwood, 471 U.S. 222, 229 (1985)
citing S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Vann
24
Woodward, Origins of the New South, 1877-1913, pp. 321-322 (1971). In Alabama,
like Louisiana:
[t]he delegates to the all-white convention were not secretive about
their purpose. John B. Knox, president of the convention, stated in his
opening address: "And what is it that we want to do? Why it is within
the limits imposed by the Federal Constitution, to establish white
supremacy in this State." 1 Official Proceedings of the Constitutional
Convention of the State of Alabama, May 21st, 1901 to September 3rd,
1901, p. 8 (1940).
Hunter v. Underwood, 471 U.S. at 229. These conventions understood that denial of
suffrage, both from the jury box and the voting poll, through misdemeanor
disenfranchisement, dilution, and other apparatus, would ensure the “supremacy”
of the Anglo-Saxon race and would avoid the scrutiny of “Massachusetts judges.”
See Official Journal At 381; see also Robert J. Smith, Bidish J. Sarma, How and
Why Race Continues to Influence the Administration of Criminal Justice, Vol. 72 No.
2 LA. LAW REV. 361, 375 (2012) (“The Delegates achieved these anti-participation
goals not only by restricting access to the ballot box but also by diluting the voice of
members of racial minority groups by allowing non-unanimous jury verdicts in
criminal cases”); id at 376 (noting commentators at the time of Constitutional
Convention’s concern that African Americans’ presence on juries would prevent
convictions, and result in hijacking sentencing outcomes); Thomas Aiello, Jim
Crow’s Last Stand: Non-Unanimous Criminal Jury Verdicts in Louisiana,
Louisiana State University Press, Baton Rouge, Louisiana, 2015; Aliza Kaplan,
Amy Saack, Overturning Apodaca v. Oregon Should Be Easy: NonUnanimous
Verdicts In Criminal Cases Undermine The Credibility Of Our Justice System, Vol.
25
95 OREGON LAW REVIEW No. 1, 3 (February 2017); .Angela A. Allen-Bell. These Jury
Systems are Vestiges of White Supremacy, Washington Post, Sept. 22, 2017.
The non-unanimous jury rule continues to have the impact that of its original
design. An exhaustive non-partisan analysis of approximately 3,000 felony trials
over the last six years by the Advocate identified 993 jury verdicts by 12 member
jury verdicts.
Forty percent of these trials were non-unanimous.
The review
revealed that the combination of prosecutorial strikes and the non-unanimous jury
rule effectively silenced participation by African-American jurors. See Jeff Adelson,
Gordon Russell and John Simerman, How An Abnormal Louisiana Law Deprives,
Discriminates and Drives Incarceration: Tilting the Scales, The Advocate, April 1,
2018,
available
at
http://www.theadvocate.com/new_orleans/news/courts/article_16fd0ece-32b1-11e88770-33eca2a325de.html.
The recent Advocate article merely confirms what
researchers have previously suggested: that non-unanimity serves to silence
minority jurors. Kim Taylor-Thompson, Empty Votes In Jury Deliberations, 113
Harv. L. Rev. 1261, 1264 (Apr. 2000).
Ultimately, petitioner does not take on the responsibility to prove that the
non-unanimous jury verdict proceeds on an unbroken line of racism from 1898 to
2018, or even that the rule imposed a racist silencing of jurors in his own case.
Instead, petitioner must simply demonstrate that the Fourteenth Amendment
incorporation doctrine should be at its most robust where the history and the
impact of the rule has such a sordid racial component.
26
D. The Pending Ballot Initiative
Justiciability of This Petition.
Does
Not
Undermine
the
In March of 2018, Senator J.P. Morrell introduced an act to submit to the
electorate an amendment to the Louisiana Constitution to require all offenses
subject to confinement at hard labor to be tried before a unanimous tribunal of
twelve jurors. In April 2018, the Louisiana Senate passed the act by more than
two-thirds majority. In May 2018, it passed the Louisiana House by a margin of 84
to 15. The issue is presently before the Louisiana electorate.
The proposed
amendment to the Louisiana Constitution is prospective only, and will not apply to
Petitioner’s case – or any case similarly situated.
The pending ballot initiative
before the Louisiana electorate does not vitiate the justiciability of the petition, and
will not address the constitutionality of convictions previously secured by nonunanimous juries. As a result, Petititioner’s case presents a strong and necessary
vehicle to address this issue.
27
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.
Respectfully Submitted,
_____________________________
G. Ben Cohen*
Shanita Farris
Erica Navalance
The Promise of Justice Initiative
636 Baronne Street
New Orleans, LA 70113
(504) 529-5955
bcohen@thejusticecenter.org
*Counsel of Record
Dated: September 7, 2018
28
CERTIFICATE OF SERVICE
Undersigned counsel certifies that on this date, the 7th day of September,
2018, pursuant to Supreme Court Rules 29.3 and 29.4, the accompanying motion for
leave to proceed in forma pauperis and petition for a writ of certiorari was served on
each party to the above proceeding, or that party’s counsel, and on every other
person required to be served, by depositing an envelope containing these documents
in the United States mail properly addressed to each of them and with first-class
postage prepaid.
The names and addresses of those served are as follows:
Leon A Cannizzaro, Jr.
Colin Clark
District Attorney
Assistant Attorney General
Office of the District Attorney
Louisiana Department of Justice
619 South White Street
P.O. Box 94005
New Orleans, LA 70119
Baton Rouge, Louisiana 70804
Phone: (504) 822-2414
Phone: (225) 326-6200
Fax: (225) 326-6297
Email: ClarkC@ag.louisiana.gov
_______________________________
G. Ben Cohen
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.