Opposition Brief — Evangelisto Ramos, Petitioner v. Louisiana

Supreme Court briefNov 8, 2018

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No. 18-5924

In the Supreme Court of the United States

EVANGELISTO RAMOS,

Petitioner,

LOUISIANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE LOUISIANA COURT OF APPEAL, FOURTH CIRCUIT

BRIEF IN OPPOSITION

JEFF LANDRY

Attorney General

ELIZABETH BAKER MURRILL

Solicitor General

COLIN CLARK*

Assistant Solicitor General

PAMELA S. MORAN

Assistant Attorney General

*Counsel of Record

Louisiana Department of Justice

1885 N. Third St.

Baton Rouge, LA 70804

(225) 326-6200

clarkc@ag.louisiana.gov

LEON A. CANNIZZARO. JR.

District Attorney,

Parish of Orleans

CHRISTOPHER J. PONOROFF

Assistant District Attorney

619 S. White Street

New Orleans, LA 70119

(504) 822-2414

cponoroff@orleansda.com

QUESTION PRESENTED

Whether this Court should overrule Apodaca v. Oregon, 406 U.S. 404 (1972) and hold

that the Sixth Amendment, as incorporated through the Fourteenth Amendment, guarantees a

state criminal defendant the right to a unanimous jury verdict.

TABLE OF CONTENTS

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

TABLE OF CONTENTS ....................................................................................................................... ii

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

STATEMENT OF THE CASE ................................................................................................................ 1

REASONS FOR DENYING THE PETITION ............................................................................................ 2

A. The Doctrine of Stare Decisis Counsels Against Overruling Apodaca v. Oregon ....... 3

This Court’s stare decisis jurisprudence shows that this petition is

not worthy of a grant of certiorari .............................................................. 3

This Court’s recent Sixth Amendment cases do not cast doubt upon

Apodaca ...................................................................................................... 5

B. Petitioner’s Historical Arguments Provide no Reason to Revisit Apodaca .................. 6

Neither the text of the Sixth Amendment nor intent of the Founders

suggests that the Sixth Amendment contains a requirement of unanimity .. 6

C. The Petitioner’s Incorporation and Historical Racial Discrimination Arguments

do not Warrant Certiorari either .................................................................................. 12

Unanimity is not subject to incorporation because it is not a

fundamental right of trial procedure ........................................................ 12

The history of Louisiana does not counsel in favor of overruling

Apodaca .................................................................................................... 14

3. Other procedural safeguards and policy considerations further

undermine any purported need to revisit Apodaca ................................... 16

D. The People’s Decision to Amend their State Constitution to Prospectively

Eliminate Non-Unanimous Juries makes this Petition less Worthy of Certiorari.18

CONCLUSION.................................................................................................................................. 20

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

DEL. DECL. OF RIGHTS AND CONSTITUTION, § 14 (SEPT. 11, 1776) ............................... 10

DEL. CONST. OF 1792 ...................................................................................................... 9

LA. CONST. ART. I, § 17 .................................................................................................. 15

LA. CONST. OF 1898, ART. 116 ................................................................................. 16, 18

LA. CONST. OF 1974……………………………………..……….…………………….….15, 16

MD. CONST. OF 1776, ART. III, XIX ............................................................................... 10

MD. CONST. OF 1776, ART. XIX ..................................................................................... 10

N.C. CONST. OF 1776, ART. IX ...................................................................................... 10

N.J. CONST. OF 1776, § XXII ......................................................................................... 10

N.Y. CONST. OF 1777, § XXXV ...................................................................................... 10

N.Y. CONST. OF 1777, § XLI .......................................................................................... 10

OR. CONST. ART. I, § 11 (1934). ....................................................................................... 5

PA. CONST. OF 1776, ART. IX......................................................................................... 10

U.S. CONST. 5 AMEND ..................................................................................................... 3

U.S. CONST. 6 AMEND ........................................................................................... passim

U.S. CONST. 7 AMEND.………………..…………………………….………………………….3

U.S. CONST. 14 AMEND.…..………………………………………………………………1, 3, 6

U.S. CONST. ART. III, § 2 ............................................................................................... 11

VA. CONST. OF 1776, § 8 ................................................................................................ 10

VT. CONST. OF 1786, ART. XI ........................................................................................ 10

STATUTES

FED. R. EVID. 606(B) ....................................................................................................... 8

LA. C.E. ART. 606(B) ....................................................................................................... 8

iii

Cases

Abbott v. Perez, 138 S.Ct. 2305 (2018) ........................................................................................ 16

Apodaca v. Oregon, 406 U.S. 404 (1972).............................................................................. passim

Apprendi v. New Jersey, 530 U.S. 466 (2000), ............................................................................... 6

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) .............. 16

Barbour v. Louisiana, 562 U.S. 1217 (2011) ................................................................................. 3

Baumberger v. Louisiana, 138 S.Ct. 392 (2017) ............................................................................ 3

Beard v. Banks, 542 U.S. 406 (2004) ............................................................................................. 4

Blakely v. Washington, 542 U.S. 296 (2004) .................................................................................. 6

Bowen v. Oregon, 558 U.S. 815 (2009) .......................................................................................... 3

Brown v. Louisiana, 447 U.S. 323 (1980) ...................................................................................... 5

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................................................................... 5

Crawford v. Washington, 541 U.S. 36 (2004)…………………………………………………….7

Dickerson v. United States, 530 U.S. 428 (2000) ........................................................................... 4

Dove v. Louisiana, 2018 U.S. LEXIS 1859 (March 19, 2018) (No. 17-6231) ............................... 3

Fountain v. Delaware, 275 A.2d 251 (Del. 1971) ........................................................................ 10

Griffin v. Kentucky, 479 U.S. 314 (1987) ..................................................................................... 15

Herrera v. Oregon, 562 U.S. 1135 (2011)...................................................................................... 3

Hilton v. South Carolina Public Railways Commission, 502 U.S. 197 (1991) .............................. 4

Hurtado v. California, 110 U.S. 516 (1884) ................................................................................... 3

In re Winship, 397 U.S. 358 (1970) .............................................................................................. 12

Johnson v. Louisiana, 406 U.S. 356 (1972).................................................................. 5, 12, 13, 19

Louisiana v. Hankton, 135 S.Ct. 195 (2014) .................................................................................. 3

Louisiana v. Miller, 568 U.S. 1157 (2013) ..................................................................................... 3

Louisiana v. Webb, 135 S.Ct. 1719 (2015) ..................................................................................... 3

Loving v. Virginia, 388 U.S. 1 (1967)........................................................................................... 12

Malloy v. Hogan, 378 U.S. 1 (1964) ............................................................................................... 6

Mathis v. United States, 136 S.Ct. 2243 (2016)............................................................................ 13

McDonald v. City of Chicago, 561 U.S. 742 (2010)............................................................... 3, 5, 6

McElveen v. Louisiana, 568 U.S. 1163 (2013) ............................................................................... 3

Mincey v. Vannoy, 138 S.Ct. 394 (2017) ........................................................................................ 3

Minneapolis & St. Louis Railroad Company v. Bombolis, 241 U.S. 211 (1916). .......................... 5

Montejo v. Louisiana, 556 U.S. 778 (2009)................................................................................ 4, 5

Oregon v. Sagdal, 343 P.3d 226 (Or. 2015) ................................................................................. 15

Palmer v. Thompson, 403 U.S. 217 (1971)................................................................................... 15

Pearson v. Callahan, 555 U.S. 223 (2009) ..................................................................................... 5

Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) ....................................................................... 8

People v. Olcott, 2 Johns. Cas. 301, 1801 N.Y. LEXIS 54 (Sup. Ct. of Judicature N.Y. 1801) .. 10

Schad v. Arizona, 501 U.S. 624 (1991)..................................................................................... 5, 13

Schriro v. Summerlin, 542 U.S. 348 (2004).................................................................................... 4

Shelby County v. Holder, 133 S.Ct. 2612 (2013).......................................................................... 15

Sims v. Louisiana, 138 S.Ct. 1592 (2018)................................................................................... 3, 6

Southern Union Co. v. United States, 567 U.S. 343 (2012) ........................................................... 6

State v. Bertrand, 6 So.3d 738 (La. 2009)………………………………………………..……….2

State v. Hankton, 122 So.3d 1028 (La. App. Ct. 2014) ................................................................ 15

State v. Hickman, 194 So.3d 1160 (La. 2009)…………………………..………………..……….2

State v. Ramos, 2016-KA-1199 (La. Ct. App. 2017)……………………………………..……….2

State v. Ramos, 2017-KO-2133 (La. 2017)………………...……………………………..……….2

State v. Webb, 133 So.3d 258 (La. Ct. App. 2014)…………………………..…………..……….2

Succession of Lauga, 624 So.2d 1156 (La. 1993)......................................................................... 14

Taylor v. Louisiana, 419 U.S. 522 (1975) .................................................................................... 17

Welch v. Department of Highways & Public Transportation, 483 U.S. 468 (1987) ...................... 4

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

Wilson v. Oldfield, 1 Del. Cas. 622 (Del. Ct. Comm’n Pleas 1818) ............................................. 10

Other Authorities

1 Annals of Cong. 435 (1789)......................................................................................................... 8

4 William Blackstone, Commentaries on the Laws of England 343 (1769)................................... 6

Harry Kalven, Jr. & Hans Zeisel, The American Jury (Little, Brown and Company 1966). 4, 5, 18

Hon. Randy J. Holland, Symposium on Tomorrow’s Issues in State Constitutional Law: State

Jury Trials and Federalism: Constitutionalizing Common Law Concepts, 38 VAL. U.L. REV.

373 (2004) ............................................................................................................................. 9, 10

Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (BasicBooks

1994) ....................................................................................................................................... 4, 5

Kenneth Klein, Klein, Student Article, Comparative Jury Procedures: What a Small Island

Nation Teaches the United States About Jury Reform, 76 LA. L. REV. 447 (2015) ................. 14

Legislation.gov.uk, Juries Act 1974,

https://www.legislation.gov.uk/ukpga/1974/23/section/17?view=extent&timeline=true (last

accessed March 23, 2018) ........................................................................................................ 14

Mar Jimeno-Bulnes, Symposium: The 50th Anniversary of 12 Angry Men: Deliberation in 12

Angry Men, 82 CHI.-KENT L. REV. 759 (2007) ......................................................................... 14

Michael H. Glasser, Student Comment, Letting the Supermajority Rule: Nonunanimous Jury

Verdicts in Criminal Trials, 24 FLA. ST. U. L. REV. 659 (1997)............................................... 15

OFFICIAL JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA (1898) 17

Richard H. Menard, Jr., Student Note, Ten Reasonable Men, 38 AM. CRIM. L. REV. 179

(2001) ................................................................................................................................ 14, 17, 18

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Neil H. Cogan ed.,

1997) ............................................................................................................................... 9, 10, 12

The Federalist 83 (Easton Press ed. 1979) (Hamilton)............................................................. 9, 11

Valerie P. Hans & Claire M. Germain, Symposium on Comparative Jury Systems: The French

Jury at a Crossroads, 86 CHI.-KENT L. REV. 737 (2011)………………………………………..14

STATEMENT OF THE CASE

On November 26, 2014, Trinece Fedison was found in a trash can in a wooded area in

New Orleans. Pet. App. A3. She had been killed by stab wounds to the neck and abdomen. Id.

at A5-6. DNA collected from the handles of the trash can and from Fedison’s vagina matched

that of Petitioner Evangelisto Ramos. Id. at A5. The garbage can belonged to a church located

across the street from both the crime scene and from the house where Ramos lived. Id. at A5.

Ramos admitted he had sex with Fedison just prior to the murder. Id. at A5. Ramos told

investigating Detective Brueggeman that the last time he saw Fedison, she got into a vehicle with

men who called her name and that she appeared to know.

Id. at A5. However, Ramos,

inconsistently, told Darryl Scheuermann, operations manager for Ramos’ employer, that the men

were harassing Fedison. Id. at A4-5.

A grand jury on May 21, 2015, indicted Ramos with one count of second-degree murder.

He was convicted June 22, 2016, after a two-day trial where ten members of a twelve-person jury

voted to return a verdict of guilty. Id. at A3. On appeal, Ramos’ counsel challenged the

sufficiency of the evidence and comments made by prosecutors during their opening statement

and closing arguments. Id. at 6-8. In addition, Ramos argued in a pro se brief that he was the

victim of anti-Hispanic racial profiling and that the trial court erred in denying a motion to

require a unanimous verdict. Id. at 9.

While this motion had presented argument regarding the guarantees of the Sixth

Amendment, as incorporated by the Fourteenth Amendment, on appeal Ramos mostly

disclaimed reliance on the Sixth Amendment and instead focused on an equal-protection

challenge. R.181; Pro se Supplemental Brief on Appeal, 16.1 On November 2, 2017, the

Louisiana Court of Appeal for the Fourth Circuit rejected Ramos’s claims, both counseled and

pro se, and affirmed his conviction and sentence. Pet. App. A1, 3.

The court of appeal denied Ramos’s claim that he was entitled to a unanimous jury

verdict because it was bound by precedent from both this Court, the Louisiana Supreme Court,

and by prior decisions of its own court. Id. at A9-10 (citing, inter alia, Apodaca v. Oregon, 406

U.S. 404 (1972); State v. Bertrand, 6 So.3d 738, 743 (La. 2009); State v. Hickman, 194 So.3d

1160, 1168–1169 (La. App. Ct. 2016)). Ramos applied for supervisory review thereafter in the

Louisiana Supreme Court.2 The Court denied relief without assigning reasons on June 15, 2018.

Id. at A11.

REASONS FOR DENYING THE PETITION

Certiorari is unwarranted because Ramos fails to show any new or compelling

justification for departing from the doctrine of stare decisis to overrule this Court’s holding in

Apodaca v. Oregon, 406 U.S. 404 (1972). No recent developments in this Court’s Sixth

Amendment jurisprudence justify upsetting longstanding precedent in the manner Ramos

proposes. To the contrary, this Court has not questioned Apodaca and has cited it positively a

number of times. And it recently confirmed that Apodaca “does not undermine the well-

“Unlike the familiar Sixth Amendment challenge to this State’s non-unanimous jury regime, a challenge the

Louisiana Supreme Court has rejected, the Equal Protection challenge presented in this case has not been addressed

on the merits by any court.” Pro se Supplemental Brief on Appeal, 16. State v. Ramos, 2016-KA-1199 (La. Ct. App.

2017). But he briefly made the Sixth Amendment argument on page 24 of his pro se appellate brief filed with the

intermediate court of appeal.

Here again, Ramos wrote that he was not fully presenting “the familiar Sixth Amendment challenge to this State’s

non-unanimous jury regime.” Application at 19, State v. Ramos, 2017-KO-2133 (La. 2017). In the main, Ramos’

arguments before the Louisiana appellate courts centered on the Equal Protection Clause. But, again, he briefly

made the Sixth Amendment argument on page 25 of his application filed with the Louisiana Supreme Court.

established rule that incorporated Bill of Rights protections apply identically to the States and the

Federal Government.” McDonald v. City of Chicago, 561 U.S. 742, 766, n. 14 (2010).

Neither the Sixth Amendment nor the Fourteenth (as a matter of incorporation) requires a

unanimous jury verdict in a criminal case. A review of the original meaning of the Sixth

Amendment reveals no reason to revisit the result in Apodaca. Also, Ramos has not shown that

Louisiana’s current provisions for less-than-unanimous jury verdicts were impermissibly

motivated by race.

The doctrine of stare decisis counsels against overruling Apodaca v. Oregon.

This Court’s stare decisis jurisprudence shows that this petition is not worthy of a

grant of certiorari.

Despite regular invitations to do so, this Court has repeatedly declined to grant certiorari

to review this issue. See, e.g., Barbour v. Louisiana, 562 U.S. 1217 (2011); Louisiana v. Miller,

568 U.S. 1157 (2013); McElveen v. Louisiana, 568 U.S. 1163 (2013); Louisiana v. Hankton, 135

S.Ct. 195 (2014); Louisiana v. Webb, 135 S.Ct. 1719 (2015); Baumberger v. Louisiana, 138

S.Ct. 392 (2017); Mincey v. Vannoy, 138 S.Ct. 394 (2017); Dove v. Louisiana, 138 S.Ct. 1279

(2018); Sims v. Louisiana, 138 S.Ct. 1592 (2018); Bowen v. Oregon, 558 U.S. 815 (2009);

Herrera v. Oregon, 562 U.S. 1135 (2011). Ramos offers no new or compelling reason to proceed

differently here.

Today’s Court would, without doubt, approach a great many of its precedents differently

as matters of first impression.3 If, as Ramos suggests, that alone is enough to call those

For example, this Court’s “governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the

Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.” McDonald, 561 U.S.

at 765, n. 13. This Court’s reasoning, regardless of the potential for a different outcome, would be different had

those issues arisen for the first time today rather than more than a century ago. See Hurtado v. California, 110 U.S.

516 (1884); Minneapolis & St. Louis Railroad Company v. Bombolis, 241 U.S. 211 (1916).

precedents into doubt, then stare decisis has no meaning. The doctrine of stare decisis “is of

fundamental importance to the rule of law” and departures from it demand “special justification.”

Welch v. Department of Highways & Public Transportation, 483 U.S. 468, 494, 495 (1987)

(citations omitted). This is true even in constitutional cases. Dickerson v. United States, 530 U.S.

428, 443 (2000). This Court does not depart from stare decisis absent “compelling justification”

because it “promotes stability, predictability, and respect for judicial authority.” Hilton v. South

Carolina Public Railways Commission, 502 U.S. 197, 202 (1991) (citations omitted).

The factors to consider when applying stare decisis are the age of the precedent, the

reliance interests at stake, the workability of the earlier decision, and the quality of the reasoning.

Montejo v. Louisiana, 556 U.S. 778, 792-793 (2009). All support leaving Apodaca undisturbed.

First, Apodaca is 46 years old, and Louisiana (as well as Oregon) has relied on it since 1972 to

instruct jurors in felony trials that they may return non-unanimous verdicts.

Next, the reliance interests at stake here are high. Overruling Apodaca would bring great

instability and unpredictability to Louisiana and Oregon. Thousands of final convictions in these

two states could be upset if such a new rule were later declared retroactive. Although the State

would contend that a new rule requiring unanimous verdicts in state criminal cases should not be

applied retroactively during collateral review, the outcome of such a hypothetical case is not

certain and a flood of defendants undoubtedly would immediately file motions claiming

otherwise. Cf. Schriro v. Summerlin, 542 U.S. 348, 353-358 (2004); Beard v. Banks, 542 U.S.

406 (2004). Indeed, one professor noted that “the number of [Oregon] juries rendering verdicts

with one or two holdouts is 25 percent of all juries.”4 The potential that about one out of every

Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy, 199 (BasicBooks 1994).

Considering the purpose of Oregon and Louisiana’s non-unanimity rule (judicial efficiency), this number makes

sense because a non-unanimity rule will result in far fewer mistrials. In The American Jury, the authors found that

four jury trials since 1934 in two states would need to be retried would create instability, even if

this Court left the decision on retroactivity for another day. See Or. Const. art. I, § 11 (1934).5

Another important stare decisis factor is workability. Montejo, 556 U.S. at 792. (“[T]he

fact that a decision has proved ‘unworkable’ is a traditional ground for overruling it.”) (citation

omitted). The Apodaca and Johnson decisions provide a workable rule that is both clear and easy

to apply here—the verdict in this non-capital felony may be returned by the concurrence of ten of

twelve jurors.6 Because these decisions do not defy consistent application, this factor also weighs

against vacating this Court’s precedent. See Pearson v. Callahan, 555 U.S. 223, 235 (2009).

Furthermore, the Court has not questioned Apodaca and Johnson and has cited one or

both of them without reservation. E.g., Schad, 501 U.S. at 634, n. 5 (plurality) (“a state criminal

defendant, at least in noncapital cases, has no right to a unanimous jury verdict”); Burch v.

Louisiana, 441 U.S. 130, 136 (1979) (“a jury’s verdict need not be unanimous to satisfy

constitutional requirements”); Brown v. Louisiana, 447 U.S. 323, 330-331 (1980) (“the

constitutional guarantee of trial by jury” does not prescribe “the exact proportion of the jury that

must concur in the verdict.”).

This Court’s recent Sixth Amendment cases do not cast doubt upon Apodaca.

No new developments or re-examination of Founding-era history supports overruling a

decision upon which Louisiana has relied for almost 50 years. This Court’s decision in

McDonald did not provide any new justification for overruling Apodaca. There, this Court

observed that protections within the Bill of Rights that are incorporated apply identically to the

“[t]he jurisdictions that allow majority verdicts have… 45 per cent fewer hung juries than those that require

unanimity.” Harry Kalven, Jr. & Hans Zeisel, The American Jury, 461 (Little, Brown and Company 1966).

Louisiana’s non-unanimous jury verdict rule predates 1934.

This Court has never had the opportunity to decide whether the rule of Apodaca would apply to a capital case. See

Schad v. Arizona, 501 U.S. 624, 630 (1991) (plurality opinion). This case does not present that issue.

States and the Federal Government. McDonald, 561 U.S. at 765. That rule was well established

by 1972. Cf. Malloy v. Hogan, 378 U.S. 1, 10-11 (1964) (“The Court thus 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.’”) (citation omitted). McDonald did not alter the

incorporation test and does not provide a compelling basis to reconsider Apodaca. Indeed, the

McDonald Court agreed that stare decisis is an acceptable rule of decision: “[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….” 561 U.S. at 784-785 (footnote

omitted) (plurality).

The other cases cited by Ramos, including Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and Southern Union Company v. United States, 567

U.S. 343 (2012), refer to William Blackstone’s prescription 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,”

Apprendi, 530 U.S. at 477 (quoting 4 William Blackstone, Commentaries on the Laws of

England 343 (1769)). But that quote from the Commentaries was known to the Founders and in

1972, when Apodaca was decided.

In December 2017, a Louisiana man petitioned this Court for certiorari following nonunanimous jury verdicts resulting in felony convictions. The Court denied his petition earlier

this year. Sims, 138 S.Ct. at 1592.

Petitioner’s historical arguments provide no reason to revisit Apodaca.

Neither the text of the Sixth Amendment nor intent of the Founders suggests that

the Sixth Amendment contains a requirement of unanimity.

Although the Apodaca plurality did not solely rely on history in concluding the Sixth

Amendment contains no requirement of unanimity, it found that the historical record suggests the

Founders did not intend the requirement to be contained within the Sixth Amendment. 406 U.S.

at 409-410 (“One possible inference is that Congress eliminated references to unanimity and to

the other ‘accustomed requisites’ of the jury because those requisites were thought already to be

implicit in the very concept of jury. A contrary explanation, which we found in Williams to be

the more plausible, is that the deletion was intended to have some substantive effect.”) (citing

Williams v. Florida, 399 U.S. 78, 96-97 (1970)). That finding was correct. Because the original

meaning of the right to a jury trial in the Sixth Amendment does not require a finding of

unanimity, the analysis should end. Cf. Crawford v. Washington, 541 U.S. 36 (2004).

History has not changed. As the plurality in Apodaca observed, “the requirement of

unanimity arose during the Middle Ages and had become an accepted feature of the common-law

jury by the 18th century.” 406 U.S. at 407-408 (footnotes omitted).7 Yet the text of the Sixth

Amendment does not reference a unanimity requirement. And “the relevant constitutional history

casts considerable doubt on the easy assumption that if a given feature existed in a jury at

common law in 1789, then it was necessarily preserved in the Constitution.” Id. at 408-409

(citation and ellipses omitted). A majority of this Court reached precisely that conclusion in

Williams. See 399 U.S. at 92.

As Williams explained, not all common law traditions have been grafted upon the word

“jury” in the Sixth Amendment. The “usual expectation” that a jury would consist of twelve men

did not elevate the rule to constitutional stature. Williams, 399 U.S. at 98, n. 45. Similarly,

although at “common law jurors were forbidden to impeach their verdict, either by affidavit or

This Court has recognized unanimous jury verdicts were not uniformly accepted by American colonists throughout

that entire period of our history in Connecticut, Pennsylvania, and in the Carolinas. Williams, 399 U.S. at 98, n. 45.

live testimony,” the no-impeachment rule is statutory, rather than constitutional in stature, and

subject to exceptions. Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 863 (2017); see also Fed. R.

Evid. 606(b); La. C.E. art. 606(B).

The “most salient fact” that shows that the Sixth Amendment does not include a

unanimity requirement is that, as originally proposed by James Madison, the Amendment

required a trial “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.” Apodaca,

406 U.S. at 409 (citing 1 Annals of Cong. 435 (1789)). Although other inferences can be drawn

from the refusal to adopt Madison’s language, a plurality of this Court found the “more

plausible” inference to be that “the deletion was intended to have some substantive effect.” Id. at

410 (citation omitted). A majority of this Court found the same inference more plausible in

Williams. 399 U.S. at 97.

What eventually became the Sixth Amendment was sent to a conference committee after

the House of Representatives and the Senate could not agree on the text. Id. at 94-95. Although

the House’s version included Madison’s unanimity requirement, the Senate deleted it and later

refused to adopt a “motion to restore the words providing for trial ‘by an impartial jury of the

vicinage, with the requisite of unanimity for conviction, the right of challenge, and other

accustomed requisites.’” Id. at 94, n. 37. Later that month, September 1789, Madison wrote a

letter to Edmund Pendleton describing the Senate’s position during the conference committee

proceedings. “It was proposed to insert after the word Juries, ‘with the accustomed requisites,’

leaving the definition to be construed according to the judgment of professional men. Even this

could not be obtained….” Id. at 95-96. This statement suggests that the Senate was concerned

with a unanimity requirement separate and apart from any concerns of the also-deleted vicinage

requirement.

James Madison’s letter explained that the reason why “the accustomed requisites”

bothered Senate members was because they could not agree on the meaning of the phrase: “The

truth is that in most of the States the practice is different, and hence the irreconcilable difference

of ideas on the subject.”8 The proper inference, therefore, is that the Founders did not intend for

the jury requirement in the Sixth Amendment to include common law features typical at the time

because the matter was considered and rejected.

Madison’s proposal was not the only one that would have had the effect of adopting a

unanimity requirement. The Virginia, North Carolina, Rhode Island, and New York state

conventions (as well as the Pennsylvania Minority) offered amendments substantially similar to

Madison’s.9 And although Alexander Hamilton was particularly critical of it, there was a

suggestion within the Pennsylvania Minority Report that the first amendments to the Constitution

should include the phrase “Trial by jury shall be as heretofore.”10 Yet the Founders did not adopt

it.

By contrast, the 1792 Delaware Constitution provided that institution of a trial by jury

would remain “as heretofore”—as the Pennsylvania Minority would have had the federal

Constitution read. Id. This commonsense phrase meant that the right to a trial by jury would also

protect ancillary common-law features, like unanimity. And when the time came, the Delaware

Court of Common Pleas interpreted its 1792 state constitutional provision as requiring “the

unanimous consent of an impartial jury.” Hon. Randy J. Holland, Symposium on Tomorrow’s

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 481 (Neil H. Cogan ed., 1997).

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 401-402.

The Federalist 83, p. 565 (Easton Press ed. 1979) (Hamilton).

Issues in State Constitutional Law: State Jury Trials and Federalism: Constitutionalizing

Common Law Concepts, 38 VAL. U.L. REV. 373, 399-400, n. 137 (2004) (quoting Wilson v.

Oldfield, 1 Del. Cas. 622, 624-627 (Del. Ct. Comm’n Pleas 1818)) (emphasis added).11 Likewise,

Section XXII of New Jersey’s 1776 Constitution retained the common law of England “as have

been heretofore practised in this Colony…” which would have had the effect of requiring a

unanimous verdict. See also N.Y. Const. of 1777, §§ XXXV, XLI (similar); People v. Olcott, 2

Johns. Cas. 301, 309-310, 1801 N.Y. LEXIS 54, *15 (Sup. Ct. of Judicature N.Y. 1801).12

Not only could the United States Congress have adopted general language protecting the

right to a trial by jury with the requisites adopted at common law, it could have been even more

explicit. Indeed, “[f]our 18th-century state constitutions provided explicitly for unanimous jury

verdicts in criminal cases.” Apodaca, 406 U.S. at 408, n. 3 (citing N. C. Const. of 1776, Art. IX;

Pa. Const. of 1776, Art. IX; Vt. Const. of 1786, Art. XI; Va. Const. of 1776, § 8). Maryland and

Delaware should have also been added to that list. Article XIX of Maryland’s 1776 Constitution

required a jury “without whose unanimous consent [the defendant] ought not to be found

guilty.”13 Section 14 of Delaware’s 1776 Declaration of Rights similarly guaranteed unanimity in

this way.14

If the Founders had wanted to ensure that the Sixth Amendment protected the common

law tradition of unanimity (and a significant number of factions wanted to do precisely that),

Delaware’s Constitutions have always contained a unanimity requirement because Delaware’s 1776 Declaration

of Rights guaranteed unanimity and because “such was the common law rule.” Fountain v. Delaware, 275 A.2d 251,

251 (Del. 1971) (citation omitted); Wilson, 1 Del. Cas. at 623-627; Del. Decl. of Rights and Constitution, § 14 (Sept.

11, 1776); The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 402. Current Article I, § 4 of

the Delaware Constitution still provides “Trial by jury shall be as heretofore.”

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 408, 409.

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 403. Article III also stated in part:

“That the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according to the

course of that law….” Id.; see also Apodaca, 406 U.S. at 408, n. 3 (citing Md. Const. of 1776, Art. III).

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 402.

they could have done so. “[C]ontemporary legislative and constitutional provisions indicate that

where Congress wanted to leave no doubt that it was incorporating existing common-law

features of the jury system, it knew how to use express language to that effect.” Williams, 399

U.S. at 97.

The Founders also understood that the sovereign would have considerable deference in

determining how the right to a jury trial would be effectuated. In Hamilton’s Federalist 83, he

wrote:

A power to constitute courts is a power to prescribe the mode of trial; and

consequently, if nothing was said in the Constitution on the subject of juries, the

legislature would be at liberty either to adopt that institution or to let it alone. This

discretion, in regard to criminal causes, is abridged by the express injunction of

trial by jury in all such cases….

The Federalist 83, p. 557 (Easton Press ed. 1979) (Hamilton).

Hamilton’s statements suggest that the Founders did not intend for the United States

Constitution to require all of the typical features a common law jury would provide.

Prior to the passage of the Sixth Amendment, the right to a trial by jury in a criminal case

was already protected by Article III, § 2 of the Constitution.15 Like the tradition of a twelveperson jury, the Founders did not understand “the mere reference to ‘trial by jury’ in Article III”

to include the requirement of unanimity, “as the subsequent debates over the Amendments

indicate.” Cf. Williams, 399 U.S. at 96. Indeed, when George Washington described the

Philadelphia Convention to the Marquis de Lafayette in April 1788 he wrote that, as to trials by

jury, there “was only the difficulty of establishing a mode which should not interfere with the

fixed modes of any of the States, that induced the Convention to leave it, as a matter of future

U.S. Const. Art. III, § 2 (“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial

shall be held in the state where the said crimes shall have been committed….”)

adjustment.”16 As a matter of original meaning, therefore, the substantially similar phrase in the

Sixth Amendment that “[i]n all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury…” cannot be interpreted to contain a requirement of

unanimity. As this Court held, “there is absolutely no indication in ‘the intent of the Framers’ of

an explicit decision to equate the constitutional and common-law characteristics of the jury.” Id.

at 99.

The Petitioner’s incorporation and historical

arguments do not warrant certiorari either.

racial

discrimination

Unanimity is not subject to incorporation because it is not a fundamental right of

trial procedure.

The text of the Sixth Amendment does not contain a unanimity requirement. Given the

evidence that the Founders did not intend the Sixth Amendment to implicate a unanimity

requirement, the fact that there is a longstanding—albeit not universal—tradition of unanimous

jury verdicts (see Pet. 11-14) does not prove much.

There is no showing here that liberty or justice does not exist without jury unanimity.

This is not a case like Loving v. Virginia, or the many other cases in this Court’s history that deal

with rights that are personal and substantive. 388 U.S. 1 (1967). Nor is this unenumerated

procedure so rudimentary that a trial is not really a trial without it. By contrast, “[t]he reasonabledoubt standard plays a vital role in the American scheme of criminal procedure. It is a prime

instrument for reducing the risk of convictions resting on factual error.” In re Winship, 397 U.S.

358, 363 (1970).

Unanimity cannot be ranked in the same category as Winship or other fundamental

precepts, like the presumption of innocence. As the plurality in Johnson reasoned, “[t]hat rational

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, at 478.

men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate

infidelity to the reasonable-doubt standard.” 406 U.S. at 362. That is so because convictions are

sustained even when “the jury would have been justified in having a reasonable doubt, even

though the trial judge might not have reached the same conclusion as the jury, and even though

appellate judges are closely divided on the issue whether there was sufficient evidence to support

a conviction.” Id. at 362-363 (citations omitted).

Moreover, courts do not question the validity of the jury’s verdict where a nonunanimous jury hangs but the prosecution obtains a conviction after a second trial. “If the doubt

of a minority of jurors indicates the existence of a reasonable doubt, it would appear that a

defendant should receive a directed verdict of acquittal rather than a retrial.” Id. at 363. Further,

“there is no general requirement that the jury reach agreement on the preliminary factual issues

which underlie the verdict.” Schad, 501 U.S. at 631 (plurality) (citation omitted); see also Mathis

v. United States, 136 S.Ct. 2243, 2249 (2016). So this Court also permits jurors to have

inconsistent views of the essential facts of a given case.

With enough jurors there will be differences of opinion, no matter the proof. Cf. Johnson,

406 U.S. at 362. (“[T]he State’s proof could perhaps be regarded as more certain if it had

convinced all 12 jurors… it would have been even more compelling if it had been required to

convince and had, in fact, convinced 24 or 36 jurors.”). There is no clear data that nonunanimous juries are more inaccurate than unanimous juries such that a trial cannot be

considered just if a non-unanimous verdict is rendered.

Nor, finally, is Apodaca contrary to international practice. England, among other

common law jurisdictions, does not require unanimous criminal verdicts.17 Many other civilian

countries similarly allow non-unanimous criminal jury verdicts. In addition to English common

law, Louisiana law also arises from Spanish and French civilian legal traditions as both countries

ruled Louisiana’s territory. See, e.g., Succession of Lauga, 624 So.2d 1156, 1159 (La. 1993).

Neither of those two countries employs a unanimous jury verdict system.18

The history of Louisiana does not counsel in favor of overruling Apodaca.

Ramos suggests that Louisiana’s non-unanimous jury verdict system is impermissibly

motivated by race. This argument lacks merit. First, although historical sources show that

delegates at Louisiana’s 1898 Constitutional Convention were impermissibly race-motivated

with regard to some matters, see, e.g., State v. Webb, 133 So.3d 258, 283-284 (La. Ct. App.

2014), it does not follow that every action taken by that Convention was motivated by racist

intent.19 The convention also strove to “[s]hape a judiciary system which will relieve the parishes

of the enormous burden of costs in criminal trials, and . . . to present to the people of this State a

judiciary system which shall be both efficient and economical.” Id. at 284 (quoting OFFICIAL

JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA 10 (1898)). As a

plurality of this Court noted, “[r]equiring unanimity would obviously produce hung juries in

some situations where nonunanimous juries will convict or acquit.” Apodaca, 406 U.S. at 411

England and Wales have adopted the Juries Act of 1974 and currently permit non-unanimous verdicts if the

deliberations

have

been

lengthy.

Legislation.gov.uk,

Juries

Act

1974,

https://www.legislation.gov.uk/ukpga/1974/23/section/17?view=extent&timeline=true (last accessed November 1,

2018). Malta, another common law jurisdiction and a part of the British Empire until 1964, similarly provides for

non-unanimous jury verdicts. Kenneth Klein, Student Article, Comparative Jury Procedures: What a Small Island

Nation Teaches the United States About Jury Reform, 76 LA. L. REV. 447, 450-452 (2015).

Mar Jimeno-Bulnes, Symposium: The 50th Anniversary of 12 Angry Men: Deliberation in 12 Angry Men, 82 CHI.KENT L. REV. 759, 765-766 (2007) (Spain); Valerie P. Hans & Claire M. Germain, Symposium on Comparative Jury

Systems: The French Jury at a Crossroads, 86 CHI.-KENT L. REV. 737, 747 (2011) (France).

For example, a mundane matter like an ordinance affecting public roads was unlikely to be motivated by racial

animus. See OFFICIAL JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA 17 (1898).

(footnote omitted).20 There is no convincing evidence demonstrating that the 1898 Constitution’s

specific authorization of non-unanimous jury verdicts was based on racism rather than judicial

efficiency.21

Moreover, “history did not end in” 1898. Cf. Shelby County v. Holder, 133 S.Ct. 2612,

2628 (2013). The 1898 Louisiana Constitution is long defunct, having been superseded by

several more recent state constitutions. Cf. Palmer v. Thompson, 403 U.S. 217, 225 (1971)

(observing that if a law is struck down “because of the bad motives of its supporters,” “it would

presumably be valid as soon as the legislature or relevant governing body repassed it for

different reasons.”). The most recent State Constitution was adopted in 1974 and allows ten-outof-twelve verdicts. LA. CONST. art. I, § 17(A). Records from the constitutional convention show

this considered choice was not motivated by any race animus. “The revision of a less-thanunanimous jury requirement in the 1974 Constitution was not by routine incorporation of the

previous Constitution’s provisions; the new article was the subject of a fair amount of debate.”

State v. Hankton, 122 So.3d 1028, 1038 (La. App. Ct. 2014). The “1973 Constitutional

Convention debated the issue of less-than-unanimous jury verdicts when it changed the required

number of jurors concurring from nine out of twelve to ten out of twelve.” Id. The stated purpose

(again) was judicial efficiency. Moreover, the 1974 Louisiana Constitution “was adopted by a

vote of the people.” Id. There is no suggestion or contemporary evidence of popular appeals to

See also n. 2, supra. Reducing hung juries is a laudable goal. Hung juries crowd courts, place tremendous

emotional and financial strains on defendants, drain state treasuries, and “give the public the impression that the

justice system is not working.” Michael H. Glasser, Student Comment, Letting the Supermajority Rule:

Nonunanimous Jury Verdicts in Criminal Trials, 24 FLA. ST. U. L. REV. 659, 660-661 (1997) (footnotes omitted).

While both the prosecution and the defense can benefit from a retrial after a mistrial because both sides were given a

“dress rehearsal,” mistrials can also indirectly prevent retrials because witnesses disappear, refuse to testify, or their

memories have faded. Id. at 660.

See also Oregon v. Sagdal, 343 P.3d 226, 231 (Or. 2015) (“[V]oters would have understood that this

constitutional amendment [contained in Or. Const. art. I, § 11] was intended to increase the efficiency of the courts

by providing for nonunanimous verdicts.”).

race as a reason for the passage of the non-unanimous-verdict provision of the 1974 Constitution,

or any that preceded it. It is this provision, not Article 116 of the 1898 Louisiana Constitution,

that applied to these proceedings.

Ramos has chosen not to “take on the responsibility to prove that the non-unanimous jury

verdict proceeds on an unbroken line of racism from 1898 to 2018…” Pet. 26. Presumably he

made this choice because, even if one accepts his (at best) circumstantial evidence that the 1898

constitutional convention provided for non-unanimous verdicts because of race, he cannot prove

that the 1974 Louisiana Constitution was infected with racial animus. Ramos has also chosen not

to include here his claim below that the non-unanimous jury law violates the Equal Protection

Clause. This may be so because, in order to succeed, the Defendant must prove that the 1974

state constitutional article allowing non-unanimous juries was enacted with racist intent. Cf.

Abbott v. Perez, 138 S.Ct. 2305, 2324 (2018) (“Whenever a challenger claims that a state law

was enacted with discriminatory intent, the burden of proof lies with the challenger, not the

State.”) (citation omitted). The Perez case illuminates this issue. Like the Louisiana

Constitutional Convention, the 2013 Texas Legislature “was not obligated to show that it had

‘cured’ the unlawful intent that the court attributed to the 2011 [Texas] Legislature.” Id. at 722.

“The ‘historical background’ of a legislative enactment is ‘one evidentiary source’ relevant to the

question of intent. But we have never suggested that past discrimination flips the evidentiary

burden on its head.” Id. at 2325 (citing Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). Therefore, “[t]he allocation of

the burden of proof and the presumption of legislative good faith are not changed by a finding of

past discrimination.” Id. at 2324.

3. Other procedural safeguards and policy considerations further undermine any

purported need to revisit Apodaca.

This Court has created an elaborate system required by the United States Constitution to

root out racism during jury deliberations. The suggestion that Louisiana’s rule “silence[s]

minority jurors” is unfounded. Pet. 26.

If any Louisiana juror was significantly motivated to convict a person because of his or

her race that conviction should not stand, regardless of whether the verdict was unanimous.

Also, the ideal of a jury containing a cross-section of the community was founded upon

neutralizing systemic biases as much as possible rather than ensuring that a certain quota of

racial, ethnic, or gender groups exist within every jury.22 The Apodaca plurality wrote that “[n]o

group… has the right to block convictions; it has only the right to participate in the overall legal

processes by which criminal guilt and innocence are determined.” 406 U.S. at 413.

Moreover, the very idea that a juror should have to be the representative of a larger

identity group in a jury deliberation room is a misunderstanding of the role of a juror. “[P]eople

have sympathies and prejudices, and of course they cannot leave all of them at the door, but

jurors should be encouraged to leave as many as they can. This country has made great strides, at

great expense in blood and money, toward realizing a good and noble self-image.” Ten

Reasonable Men, 38 AM. CRIM. L. REV. at 192, n. 47. But “[t]o encourage, or even to condone, a

juror’s approaching his task in terms of whether he has a dog in the fight is to take a very big

step backward.” Id.

A plurality of this Court refused to “assume… that a majority [of a jury] will deprive a

man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument

in favor of acquittal.” Apodaca, 406 U.S. at 413. The suggestion that jury deliberations are not

really deliberations at all because of the non-unanimity rule relies on an “essential premise,

See Richard H. Menard, Jr., Student Note, Ten Reasonable Men, 38 AM. CRIM. L. REV. 179, 192 (2001); see also

Taylor v. Louisiana, 419 U.S. 522, 531 (1975).

which is that 10 or 11 jurors who are persuaded that a defendant is guilty will not listen to

counter-arguments if it means being late for dinner. It is conceivable that the average juror is so

base, but it seems fairer to assume that most Americans take the job a bit more seriously….” Ten

Reasonable Men, 38 AM. CRIM. L. REV. at 195.

Non-unanimity does not solely benefit either the State or a criminal defendant. According

to Professor Abramson, “[a]ll studies confirm that the ratio of convictions to acquittals would not

significantly change” between unanimous conditions and “9-3 or 10-2 verdict rules.” We the

Jury, p. 201; see also Apodaca, 406 U.S. at 411, n. 5 (“The most complete statistical study of

jury behavior has come to the conclusion that when juries are required to be unanimous, ‘the

probability that an acquittal minority will hang the jury is about as great as that a guilty minority

will hang it.’”) (citing The American Jury at 461). Both in unanimous conditions and nonunanimous conditions, where juries reach a verdict, they convict about two-thirds of the time and

acquit one-third of the time. The American Jury at 461.

The Founders did not intend the Sixth Amendment to include a unanimity requirement.

The suggestion that neither liberty nor justice exists when a non-unanimous verdict is reached

was properly rejected by this Court 46 years ago. There is no compelling reason to revisit these

issues because this Court considered the same arguments (and essentially the same evidence) in

1972.

The people’s decision to amend their state constitution to prospectively

eliminate non-unanimous juries makes this petition less worthy of certiorari.

On November 6, 2018, the voters of Louisiana chose to require unanimous verdicts in all

cases where the offense was committed on or after January 1, 2019. See 2018 La. Reg. Sess., Act

722.

Rule X of this Court lists two general considerations when this Court chooses to exercise

its power to review a state court decision. The first is whether there is a conflict between the

decision below and the federal courts of appeals or the other state courts of last resort. Sup. Ct.

R. X(b). There is no such conflict here. The second is whether the case presents an important

federal question “that has not been, but should be settled by this Court, or has decided an

important federal question in a way that conflicts with relevant decisions of this Court.” Id. As

Apodaca, Johnson, and subsequent cases show, the question presented has been settled. Ramos’s

argument is that subsequent cases and experience suggest revisiting a settled question in spite of

stare decisis.

The change to Louisiana’s constitution considerably lessens the importance of the

question presented. The procedure at issue only occurs in two states out of fifty. Although this

case is not moot, the alleged importance of the federal question has been further diminished. In a

few years, Louisiana will no longer have trials with non-unanimous juries. Given how many

times over the past 46 years this Court has refused to review Louisiana’s non-unanimous jury

system, this moment would be an odd one in which to choose to intervene. Louisianans have just

chosen for themselves, expressed in their own state’s constitution, that they want unanimous

juries and have chosen to make the rule apply only to crimes committed next year and beyond.

CONCLUSION

The State of Louisiana respectfully submits that the petition for a writ of certiorari should

be denied.

Respectfully submitted,

/s/ Colin Clark_______________