Opposition Brief — Michael Joseph Brooks, Jr., Petitioner v. Louisiana

No. 18-9463

In the Supreme Court of the United States

MICHAEL J. BROOKS,

Petitioner

vs.

THE STATE OF LOUISIANA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE LOUISIANA First CIRCUIT COURT OF APPEAL

BRIEF IN OPPOSITION

JEFF LANDRY

Attorney General

ELIZABETH BAKER MURRILL

Solicitor General

MICHELLE WARD GHETTI

Deputy Solicitor General,

Counsel of Record

Louisiana Department of Justice

1885 N. Third St.

Baton Rouge, LA 70804

(225) 326-6028

Joseph L. Waitz

District Attorney

Ellen Daigle Doskey

Assistant District Attorney

Terrebonne Parish District Attorney

P O Box 3600

Houma, LA 70361

(985) 873-6868

i

QUESTION PRESENTED

Petitioner has posed the following question:

Whether Petitioner was constitutionally entitled to a unanimous jury under

the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution?

Based upon the issues raised (and abandoned) below and Mr. Brooks’ Petition

filed with this Court, the State of Louisiana believes the only question properly before

the Court is the question presented in Evangelisto Ramos v. Louisiana:

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

and hold that the Sixth Amendment right to an impartial jury, as incorporated

through the Fourteenth Amendment, guarantees State criminal defendants the right

to a unanimous jury verdict.

ii

TABLE OF CONTENTS

QUESTION PRESENTED................................................................................................. ii

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

CONSTITUTIONAL AND STATUTORY AUTHORITY .................................................. 1

STATEMENT OF THE CASE ........................................................................................... 2

REASONS FOR DENYING THE WRIT ........................................................................... 4

I.

A GENERIC REFERENCE TO MULTIPLE PROVISIONS OF THE UNITED STATES

CONSTITUTION DOES NOT PRESERVE A CONSTITUTIONAL CLAIM ............................... 7

A. Constitutional Issues Cannot Be Smuggled into Court ................................... 7

B. Petitioner is Foreclosed from Raising an Equal Protection Claim ................ 10

II. THE LONGSTANDING RULE THAT THIS COURT WILL NOT CONSIDER CLAIMS THAT

WERE NOT PRESSED IN THE STATE COURTS BELOW CREATES A WEIGHTY

PRESUMPTION AGAINST REVIEW .............................................................................. 11

A. Failure to Object to the Non-Unanimous Jury Verdict Instruction At Trial Is

A State Procedural Default That Bars Federal Review ........................................ 11

B. Petitioner Did Not Present a Sixth Amendment Incorporation Claim to the

Louisiana Courts Below and They Did Not Address the Issue ............................. 13

III. THE JUDGMENT OF THE LOUISIANA CIRCUIT COURT WAS CORRECT ........................ 15

A. Apodaca Was Decided Correctly and Should Not Be Overruled.................... 16

B. The Sixth Amendment Does Not Require Unanimity. ................................... 18

C. A Unanimous Jury Verdict is Not Fundamental to Ordered Liberty ........... 20

D. Louisiana’s Non-unanimous Jury Verdict Rule Is Not the Product of Racial

Animus. ................................................................................................................... 22

IV. LOUISIANA HAS ALREADY CHANGED ITS JURY VERDICT LAWS TO PROVIDE FOR

UNANIMOUS VERDICTS IN ALL CASES ...................................................................... 24

V. ALTERNATIVELY, THIS COURT SHOULD HOLD DEFENDANT’S PETITION PENDING THIS

COURT’S DECISION IN RAMOS V. LOUISIANA, NO. 18-5924. ....................................... 25

CONCLUSION ................................................................................................................. 25

ii

TABLE OF AUTHORITIES

Cases

Adams v. Robertson, 520 U.S. 83, 86 (1997)................................................................ 14

Alleyne v. United States, 570 U.S. 99, 118 (2013) ....................................................... 17

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

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 77 (1988) ................................. 5, 8

Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of

California, Inc., 522 U.S. 192, 205 (1997) ................................................................ 11

Carlson v. Green, 446 U.S. 14, 16 n.2 (1980) ............................................................... 15

District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72-73

(2009) ......................................................................................................................... 24

Duncan v. Louisiana, 391 U.S. 145, 149 (1968) .......................................................... 20

Evangelisto Ramos v. Louisiana, 139 S. Ct. 1318 (2019) ..................................... 5, 7, 8

Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) .............................................. 16

Howell v. Mississippi, 543 U.S. 440, 443 (2005) ......................................................... 14

Illinois v. Gates, 462 U.S. 213, 218 (1983) .................................................................. 14

Irvine v. California, 347 U.S. 128, 129 (1954) ............................................................... 9

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 32

(1993) ....................................................................................................................... 5, 9

Jones v. United States, 527 U.S. 373, 387-88 (1999)................................................... 12

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) ........... 17

McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) ............................................. 20

Picard v. Connor, 404 U.S. 270 (1971) ........................................................................ 14

Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 66 (1996) ................................................ 16

State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738 ............................. 4, 16

State v. Brooks, 2017-1755, *2-6 (La. App. 1 Cir. 9/24/18) ................................... 2, 3, 4

State v. Fasola, 2004-902 (La. App. 5 Cir. 3/29/05)..................................................... 12

State v. Fleury, 2001–0871 (La. 10/16/01), 799 So.2d 468, 472. ................................. 12

State v. Hatton, 07-2377 (La. 7/1/078), 985 So.2d 709, 718-19 ................................... 11

State v. Rubens, 2010-1114 (La. App. 4 Cir. 11/30/11) ............................................... 12

State v. Webb, 2013-0146 (La. App. 4th Cir. 01/30/14) ............................................... 23

Stilson v. United States, 250 U.S. 583, 587 (1919) ..................................................... 18

Taylor v. Illinois, 484 U.S. 400, 407 n.9 (1988) ......................................................... 5, 8

Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) .............................................................. 17

United States v. Marchant, 25 U.S .............................................................................. 18

Washington v. Glucksberg, 521 U.S. 702, 721 (1997) ................................................. 20

Webb v. Webb, 451 U.S. 493, 496-97 (1981)................................................................. 14

Williams v. Florida, 399 U.S. 78, 91 (1970) .................................................... 18, 20, 21

Wood v. Georgia, 450 U.S. 261, 265 n.5 (1981) ........................................................... 15

Yee v. City of Escondido ................................................................................................. 9

STATUTES

28 U.S.C.A. § 1257........................................................................................................ 16

La. Code Crim. Proc. art. 841 ...................................................................................... 13

Louisiana Code of Criminal Procedure article 782 ....................................................... 3

iii

Louisiana Constitution article I, § 17(A) ....................................................................... 3

Louisiana Revised Statutes 14:42 ................................................................................. 4

Louisiana Revised Statutes 14:81.2 .............................................................................. 4

OTHER AUTHORITIES

Ethan J. Lieb, A Comparison of Criminal Jury Decision Rules in Democratic

Countries, 5 Ohio St. J. Crim. L. 629, 642 (2008) .................................................... 23

JON M. VAN DYKE, JURY SELECTION PROCEDURES 148 (1977)..................................... 20

S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, SUPREME COURT

PRACTICE 463 (10th Ed. 2013) ................................................................................... 10

The English Common Law in the Early American Colonies, in 1 Select Essays in

Anglo-American Legal History 367, 412 (1907) ....................................................... 21

RULES

Rule 14.1(a)................................................................................................................... 11

Supreme Court Rule 14.1 ............................................................................................. 11

iv

CONSTITUTIONAL AND STATUTORY AUTHORITY1

Petitioner misrepresents the Louisiana statutory law on jury verdicts.

Article 782 of the Louisiana Code of Criminal Procedure was amended in 2018. The

text of the statute that existed at the time of Mr. Brooks’ trial is correctly stated in

the petition; however, Louisiana Code of Criminal Procedure article 782 now

provides, in pertinent part:

A case for an offense committed prior to January 1, 2019, 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. A case for an offense committed on or after

January 1, 2019, in which the punishment is necessarily

confinement at hard labor shall be tried before a jury of twelve

persons, all of whom must concur to render a verdict.

Petitioner does not provide the Louisiana Constitutional authority for jury

verdicts. The text of Louisiana Constitution article I, § 17(A) that existed at the

time of the trial provides, in pertinent part:

A criminal case in which the punishment may be capital shall be tried

before a jury of twelve persons, all of whom must concur to render a

verdict. A case in which the punishment is necessarily confinement at

hard labor shall be tried before a jury of twelve persons, ten of whom

must concur to render a verdict. A case in which the punishment may

be confinement at hard labor or confinement without hard labor for

more than six months shall be tried before a jury of six persons, all of

whom must concur to render a verdict.

That article was also amended and currently reads, in pertinent part:

A case for an offense committed prior to January 1, 2019, in which

the punishment is necessarily confinement at hard labor shall be

tried before a jury of twelve persons, ten of whom must concur to

render a verdict. A case for an offense committed on or after

January 1, 2019, in which the punishment is necessarily

confinement at hard labor shall be tried before a jury of twelve

1 Respondent notes that, although Petitioner mentions the Fifth Amendment in his statement of the

Question Presented, he does not list the Fifth Amendment as a constitutional provision involved in

his petition for certiorari.

1

persons, all of whom must concur to render a verdict.

STATEMENT OF THE CASE2

Facts of the Crime. According to the victim of this crime, when she was in

first grade, Petitioner, who was the victim’s mother’s boyfriend, put his finger in her

vagina after checking her out of school and requiring that she take a bath. Several

years later, after her mother and Petitioner married, the now eleven-year-old victim

and Petitioner were in a large walk-in closet at their home where he vaginally raped

her. Two years later, in junior high school, she told her guidance counselor what

had happened, police were contacted, and legal proceedings began.

Facts of the Procedures. Petitioner was charged by grand jury indictment with

one count of molestation of a juvenile, a violation of Louisiana Revised Statutes

14:81.2, and two counts of aggravated rape, a violation of Louisiana Revised

Statutes 14:42 (now designated as first degree rape). Both crimes require

confinement at hard labor. He filed no pretrial motion challenging the

constitutionality of Louisiana’s jury verdict system, proposed no alternatives to the

standard jury instructions on the vote required to convict, and made no objections to

the instructions given. Eleven members of a 12-person jury found him guilty of

molestation of a juvenile and of aggravated rape. Ten found him not guilty of the

second count of aggravated rape. Petitioner did not object to the verdict. Although

he filed a motion for post-verdict judgment of acquittal, he did not complain of the

jury verdict. He was sentenced to twenty-five years for the molestation and life in

2 These facts are taken from the lower court opinion in State v. Brooks, 2017-1755, *2-6 (La. App. 1

Cir. 9/24/18), 258 So.3d 944, 947-48, 949-950, Pet. App. A5-7.

2

prison without parole for the rape. These sentences ran concurrently.3

Petitioner appealed. His sole counseled assignment of error was that the

State did not prove beyond a reasonable doubt that he committed these crimes and,

as such, the evidence was insufficient to support either conviction. Petitioner also

filed a pro se appeal. In that appeal he raised two issues, including insufficiency of

evidence. The First Circuit Court of Appeals in Louisiana held that Petitioner’s

arguments attacked the credibility of the victim, something that did not render the

evidence insufficient. State v. Brooks, Pet. App. A7-9.

On his second issue, Petitioner raised an issue he had never raised before:

that Louisiana’s jury verdict laws “violate Equal Protection under the Fourteenth

Amendment and Article I, Section Three (3) of the Louisiana Constitution of 1974,

because the constitutional provision's enactment was motivated by an express and

overt desire to discriminate against blacks on account of race and because the

provision has had a racially discriminatory impact since its adoption.” Resp. App. at

2. Mr. Brooks did not raise a due process claim; in fact, he specifically rejected it. Id.

(“Unlike the familiar Sixth Amendment challenge to this State’s non-unanimous

jury regime . . . the Equal Protection challenge presented in this case has not been

addressed on merits by any court.”).

The court held—as it has in hundreds of other cases—that a constitutional

challenge in Louisiana may not be considered by an appellate court unless it was

raised and properly pleaded in the trial court. And such a claim is not properly

pleaded unless the specific grounds outlining the basis of the unconstitutionality are

3 Petitioner is incorrect when he says at page 3 of his petition that he was sentenced to life plus 25

years.

3

particularized. Because this was not done, the issue was not properly before the

state appellate court.4

The court of appeal, in dicta, “nevertheless address[ed] the issue.” Id. at 953.

The court found that “[u]nder both state and federal jurisprudence, a criminal

conviction by a less than unanimous jury does not violate a defendant’s right to trial

by jury specified by the Sixth Amendment and made applicable to the states by the

Fourteenth Amendment.” Id. As to the equal protection challenge specifically, the

court relied on State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738, which

found that the issue had already been decided as meritless by the United States

Supreme Court. Brooks, 266 So.3d at 953-54.5

Mr. Brooks petitioned for a writ of certiorari from the Louisiana Supreme

Court, but was denied. Pet. App. A12. He now requests review from this Court,

apparently raising only a Sixth Amendment incorporation claim—something he has

never raised, much less argued or briefed to any court below.

REASONS FOR DENYING THE WRIT

Even if this Court determined that a unanimous verdict is required in trials

in the States, this petition should be denied because the sole issue raised in the

petition was never raised at trial and, thus, is procedurally barred. Petitioner

should not be allowed to resurrect this claim at this late juncture.

This petition is a long-shot attempt to obtain relief on an issue he expressly

abandoned. His Question Presented lists three constitutional provisions. But he

never explains which constitutional right in those provisions applies to him or how

4 By omission, Petitioner misleads the Court on this point.

5 This holding was also misrepresented by Petitioner in his petition.

4

those provisions generate a question for this Court. In other words, he does not

actually pose any question at all.

This Court has repeatedly said that it disapproves of a petitioner “smuggling

additional questions into a case” that were not presented in his petition. Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 32 (1993). And

yet, that is precisely what he attempts to do by carrying a smuggler’s bag big

enough to hold nearly every issue related to a criminal trial. Many books line the

shelves of law school libraries on each one of the amendments he has listed, and

many trees were felled to publish reams of law review articles on subsidiary clause

and related questions. The only criminal procedure issues not encompassed by

Petitioner’s Question Presented would be those found in the Eighth Amendment:

bail, fines, and punishment. His question is so broad that it amounts to no question

at all. Instead, it presents only a vague appeal to general constitutional principles.

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 77 (1988). Put simply, “[a]

generic reference to the Fourteenth Amendment is not sufficient to preserve a

constitutional claim based on an unidentified provision of the Bill of Rights.” Taylor

v. Illinois, 484 U.S. 400, 407 n.9 (1988).

To further obfuscate his reasoning, he proceeds, in one paragraph, to state no

more reason to grant his petition than the fact that this Court has granted a

petition for a writ of certiorari in Evangelisto Ramos v. Louisiana, 139 S. Ct. 1318

(2019), and, “for the reasons stated in that petition, as well as reasons stated in

similar petitions filed over the last 45 years,” Apodaca v. Oregon, 406 U.S. 404

(1972), should be “re-examin[ed] and disavow[ed].” Then, with no argument or

5

supporting evidence, he simply states, “Given the racial origins of the nonunanimous jury provision, full incorporation by the Fourteenth Amendment of the

Sixth Amendment’s guarantee of a unanimous jury is required.”

To be clear, if sufficiently raised at all (and Louisiana submits it was not), the

only issue raised is an unstated, unproved claim that the Sixth Amendment’s

impartial jury clause requires a unanimous verdict and that such a requirement

should be applied to the States through the Fourteenth Amendment. Despite

referencing “racial origins,” Petitioner makes no equal protection claim. Therefore,

the due process claim having not been raised, argued, or ruled upon by any court

below, his application should be dismissed.

That said, the Louisiana appellate courts were correct in upholding this

verdict. They relied upon this Court’s precedent, as did the Louisiana legislature in

enacting the jury verdict law in place at the time of Petitioner’s conviction. That

precedent, including Apodaca v. Oregon, was decided correctly and should not be

overruled. Nowhere in the Constitution, including Article III and the Sixth

Amendment, is a unanimous jury verdict required. In fact, the Framers of the

Constitution considered such a provision and purposefully left it out. Thus, neither

the text of the Constitution, including the Sixth Amendment, nor its history,

provide for a right to a unanimous jury verdict. Furthermore, such a right is not

fundamental to ordered liberty. It has never been found to be essential to due

process—whether in the Fifth or the Fourteenth Amendment. Additionally, the vast

majority of other countries who use juries—including England, from whom we

inherited the concept of a jury trial—do not provide for unanimous jury verdicts.

6

Moreover, Petitioner has offered no evidence, at trial or in his petition, that

Louisiana’s non-unanimous jury verdict rule had racial origins or was motivated by

racial animus. That’s because the jury trial provisions under which Petitioner was

tried were adopted by the people in 1973, after a Constitutional Convention, in

which the Delegates specifically relied on this Court’s precedent but nevertheless

increased the required vote to 10-2 to convict. The 1974 Constitution was voted on

by the people, as was the new provision adopting unanimity going forward with

trials for crimes committed after January 1, 2019. Thus, any change the Court

might wish to actuate has already been realized—and without the collateral

consequences a ruling by this Court might cause.

Alternatively, if the Court is inclined to grant the petition, Louisiana

requests that it be held for further action pending this Court’s decision in

Evangelisto Ramos v. Louisiana, No. 18-5924 (April 3, 2019).

I.

A GENERIC REFERENCE TO MULTIPLE PROVISIONS OF THE UNITED STATES

CONSTITUTION DOES NOT PRESERVE A CONSTITUTIONAL CLAIM

A. Constitutional Issues Cannot Be Smuggled into Court

In his Question Presented, Petitioner claims that he is “constitutionally

entitled to a unanimous jury under the Fifth, Sixth, and Fourteenth Amendments.”

There are five separate constitutional rights set forth in the Fifth Amendment; at

least eight different constitutional rights set forth in the Sixth Amendment; and at

least twelve separate constitutional rights set forth in the Fourteenth Amendment.

Petitioner specifies none of them.

To further muddle his reasoning, he proceeds, in one paragraph, to simply

state that this Court has granted a petition for a writ of certiorari in Evangelisto

7

Ramos v. Louisiana and that, “for the reasons stated in that petition, as well as

reasons stated in similar petitions filed over the last 45 years,” Apodaca v. Oregon

should be “re-examin[ed] and disavow[ed].” Then, with absolutely no argument or

supporting evidence, simply states, “Given the racial origins of the non-unanimous

jury provision, full incorporation by the Fourteenth Amendment of the Sixth

Amendment’s guarantee of a unanimous jury is required.”

A vague appeal to constitutional principles does not preserve constitutional

claims. Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 77 (1988) (noting, for

example, that the petition in the lower court did not identify the Excessive Fines

Clause of the Eighth Amendment as the source of the claim). In particular, “[a]

generic reference to the Fourteenth Amendment is not sufficient to preserve a

constitutional claim based on an unidentified provision of the Bill of Rights.” Taylor

v. Illinois, 484 U.S. 400, 407 n.9 (1988). Furthermore, Supreme Court Rule 14.4

provides that “[t]he failure of a petitioner to present with accuracy, brevity, and

clarity whatever is essential to ready and adequate understanding of the points

requiring consideration is sufficient reason for the Court to deny the petition.”

Regarding the Question Presented, as noted in the treatise, SUPREME COURT

PRACTICE, “it is not enough to ask whether, in light of stated circumstances, the

petitioner’s constitutional or statutory rights were violated.” The precise provision

of the Constitution, such as the Due Process Clause of the Fourteenth Amendment,

must be cited. See S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb,

SUPREME COURT PRACTICE 463 (10th Ed. 2013). Finally, the fact that Petitioner may

have discussed an issue in the text of his petition for certiorari does not bring it

8

before Court. As this Court has noted, “Rule 14.1(a) requires that a subsidiary

question be fairly included in the question presented for [the Court’s] review.” Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 31-32 & n.5

(1993).

Supreme Court Rule 14.1 provides that “[o]nly the questions set out in the

petition, or fairly included therein, will be considered by the Court.” As the Court

has noted, “faithful application of Rule 14.1(a) thus helps ensure that [the Court] is

not tempted to engage in ill-considered decisions of questions not presented in the

petition. Faithful application will also inform those who seek review here that [the

Court] continue[s] to strongly ‘disapprove the practice of smuggling additional

questions into a case after [it] grant[s] certiorari.” Izumi, 510 U.S. at 30-34 (refusing

to take up certain questions because they were not raised in the petition (citing

Irvine v. California, 347 U.S. 128, 129 (1954))). In Yee v. City of Escondido, the

Court also discussed the two important purposes for the Rule:

First, it provides the respondent with notice of the grounds upon which

the petitioner is seeking certiorari and enables the respondent to

sharpen the arguments as to why certiorari should not be granted.

Were [the Court] routinely to consider questions beyond those raised in

the petition, the respondent would lack any opportunity in advance of

litigation on the merits to argue that such questions are not worthy of

review. Where, as is not unusual, the decision below involves issues on

which the petitioner does not seek certiorari, the respondent would

face the formidable task of opposing certiorari on every issue the Court

might conceivably find present in the case. By forcing the petitioner to

choose his questions at the outset, Rule 14.1(a) relieves the respondent

of the expense of unnecessary litigation on the merits and the burden

of opposing certiorari on unpresented questions.

Second, Rule 14.1(a) assists the Court in selecting the cases in which

certiorari will be granted. . . . Were [it] routinely to entertain questions

not presented in the petition for certiorari, . . . parties who feared an

inability to prevail on the question presented would be encouraged to

9

fill their limited briefing space and argument time with discussion of

issues other than the one on which certiorari was granted. Rule 14.1(a)

forces the parties to focus on the questions the Court has viewed as

particularly important, thus enabling [it] to make efficient use of [its]

resources. 503 U.S. 519, 535-36 (1992).

Petitioner has not accurately and clearly stated his claim or its constitutional

basis. Broadly and generically referencing constitutional provisions without

identifying the specific rights guaranteed therein, in addition to violating this

Court’s rules, sets up a situation where Petitioner can “smuggle” in all sorts of

“disguised” claims. Furthermore, it leaves Respondent with the “formidable task of

opposing certiorari on every issue the Court might conceivably find present” in the

Fifth, Sixth, and Fourteenth Amendments. Furthermore, if the Court grants this

application for the purpose of reconsidering its decision in Apodaca v. Oregon, the

parties briefing on other issues would be a waste of this Court’s resources and time.

Petitioner’s application for a writ should be denied.

B. Petitioner is Foreclosed from Raising an Equal Protection Claim

If, possibly, Petitioner sufficiently raised a Sixth Amendment claim by

reference in the text of his petition, he certainly has not raised an equal protection

claim. A general reference to the Fourteenth Amendment in the Question Presented

cannot suffice. Petitioner’s reasons for granting the petition include only the reexamination of Apodaca v. Oregon and the incorporation of the Sixth Amendment.

The words “equal protection” are mentioned nowhere in the petition, including any

reference to his pro se equal protection argument in the court below. Thus,

Petitioner waived this claim. An argument withheld from the petition has been

waived and will not be considered when made for the first time in briefing the

10

merits. Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of

California, Inc., 522 U.S. 192, 205 (1997). Thus, this issue does not merit review by

the Court.

II.

THE LONGSTANDING RULE THAT THIS COURT WILL NOT CONSIDER CLAIMS

THAT WERE NOT PRESSED IN THE STATE COURTS BELOW CREATES A

WEIGHTY PRESUMPTION AGAINST REVIEW

A. Failure to Object to the Non-Unanimous Jury Verdict Instruction

At Trial Is A State Procedural Default That Bars Federal Review

In considering Petitioner’s pro se assignment of error regarding the jury

verdict, the Louisiana Circuit Court held

It is well-settled that a constitutional challenge may not be considered

by an appellate court unless it was properly pleaded and raised in the

trial court below. A party must raise the unconstitutionality in the

trial court, the unconstitutionality must be specially pleaded, and the

ground outlining the basis of unconstitutionality must be

particularized. See State v. Hatton, 07-2377 (La. 7/1/078), 985 So.2d

709, 718-19. In the instant case, defendant failed to raise his challenge

to Louisiana Constitutional Article I, § 17(A) in the trial court.

Accordingly, the issue is not properly before this court.

This holding is based upon two premises:

First, Louisiana law generally requires that “[a]n irregularity or error cannot

be availed of after verdict unless it was objected to at the time of occurrence.” La.

Code Crim. Proc. art. 841. “It is sufficient that a party, at the time the ruling or

order of the court is made or sought, makes known to the court the action which he

desires the court to take, or of his objections to the action of the court, and the

grounds therefor.” Id (emphasis added).

More specifically, an objection to a claimed improper jury instruction is

procedurally required in order to raise the issue on appeal. See State v. Rubens,

11

2010-1114 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, writ denied 2012-0399 (La.

10/12/12), 99 So.3d 37, cert. denied Rubens v. Louisiana, 568 U.S. 1236 (2013). The

purpose of this rule is to allow a trial court to consider the argument and make a

correction at the time of the error. It also serves to create a full record on the issue

raised for subsequent reviewing courts. Federal law also provides that a party may

not assign error to a jury instruction if he fails to object before the jury retires or to

“state distinctly the matter to which that party objects and the grounds of that

objection.” Jones v. United States, 527 U.S. 373, 387-88 (1999) (citing Fed. Rule

Crim. Proc. Art. 30).

Petitioner did not complain of the 10-2 verdict instruction prior to trial, when

it was given, during deliberations, or at any time before the jury was dismissed and,

thus, waived that claim.6 He cannot resurrect it now.

Second, the party challenging the constitutionality of any provision of

Louisiana law bears the burden of proving it is unconstitutional. State v.

Fleury, 2001–0871 (La. 10/16/01), 799 So.2d 468, 472. It has long been held that the

unconstitutionality of a statute must be specially pleaded and the grounds for the

claim particularized. State v. Schoening, 2000–0903, p. 3 (La. 10/17/00), 770 So.2d

762, 764. The Louisiana Supreme Court “has expressed the challenger’s burden as

a three step analysis. First, a party must raise the unconstitutionality in the trial

court; second, the unconstitutionality of a statute must be specially pleaded; and

third,

the

grounds

outlining

the

basis

of

unconstitutionality

must

be

6 Defendant’s post-verdict motion also did not state an objection to the non-unanimous jury verdict.

See State v. Fasola, 2004-902 (La. App. 5 Cir. 3/29/05), 901 So.2d 533 writ denied 2005-1069 (La.

12/9/05), 916 So.2d 1055 (Defendant’s constitutional claim was clearly not the focus of any hearing

and the record contained no argument on the topic.)

12

particularized.” State v. Hatton, 2007-2377 (La. 7/1/08); 985 So.2d 709, 719. The

purpose of this rule is “to afford interested parties sufficient time to brief and

prepare arguments defending the constitutionality of the challenged statute.” Id.

(citing Schoening, 770 So.2d at 764). Knowing with specificity what constitutional

provisions are allegedly being violated gives the opposing parties the opportunity to

fully brief and argue the facts and law surrounding the issue and “provides the trial

court with thoughtful and complete arguments relating to the issue of

constitutionality and furnishes reviewing courts with an adequate record upon

which to consider the constitutionality of the statute.” Id. This basic principle

dictates that the party challenging the constitutionality of a statute must cite to the

specific provisions of the constitution that prohibits the action. Id. at 720 (citing

Fleury, 799

So.2d

at

472 (“It

is

elementary

that

he

who

urges

the

unconstitutionality of a law must especially plead its unconstitutionality and show

specifically wherein it is unconstitutional. . . .”)).

This was simply not done in this case. The State had no opportunity at trial

to present evidence, brief, or make argument on the constitutionality of its jury

verdict laws. This could be particularly damaging, in this case, given the

Petitioner’s unsupported claim that the non-unanimous jury provision has racial

origins. Thus, the reviewing court had no record on this issue to review, much less

an adequate one, and held that the issue was not properly before the Court.

B. Petitioner Did Not Present a Sixth Amendment Incorporation

Claim to the Louisiana Courts Below and They Did Not Address

the Issue

This Court has “almost unfailingly refused to consider any federal-law

13

challenge to a state-court decision unless the federal claim [raised in the

challenge] ‘was either addressed by7 or properly presented to the state court that

rendered the decision [it was] asked to review.’” Howell v. Mississippi, 543 U.S.

440, 443 (2005) (citing Adams v. Robertson, 520 U.S. 83, 86 (1997) (per curiam);

Illinois v. Gates, 462 U.S. 213, 218 (1983) (tracing this principle back to Crowell v.

Randell, 35 U.S. 368 (1836))). The principle of comity stands behind this

“properly-raised-federal-question” doctrine. See Webb v. Webb, 451 U.S. 493, 49697 (1981) citing Picard v. Connor, 404 U.S. 270 (1971). The doctrine’s function

reflects

an accommodation of our federal system designed to give the State the

initial ‘opportunity to pass upon and correct’ alleged violations of its

prisoners' federal rights. We have consistently adhered to this federal

policy, for ‘it would be unseemly in our dual system of government for a

federal [] court to upset a state court conviction without an opportunity

to the state courts to correct a constitutional violation.’

Id. (citations omitted).

Despite the changes to this Court’s jurisdictional coverage in 1970 and

1988, see 28 U.S.C.A. § 1257, this Court has continued to recognize the importance

of comity and the “properly-raised-federal-question” doctrine and, with “very rare

exceptions” has “adhered to the rule in reviewing state court judgments” that it

“will not consider a petitioner’s federal claim unless it was either addressed by, or

properly presented to, the state court that rendered the decision [it] has been

asked to review.” Adams v. Robertson, 520 U.S. at 86 (citations omitted). While

this Court has, admittedly, since the wording of the rule was changed in 1988,

Although the First Circuit “address[ed] the issue,” after determining the case was not properly

before it, its discussion is purely dicta. The Sixth Amendment issue had not even been presented to it

and it spent no more than three sentences discussing it, one of which was just restating the state law

provisions and the other just string-listing cases upholding those provisions. See Pet. App. A9.

7

14

“expressed inconsistent views as to whether this rule is jurisdictional or

prudential in cases arising from state courts,” it has noted that, in federal cases

the rule is prudential only. Id.

Furthermore, those exceptional cases where the Court has granted review

involved situations where the issue could not have been raised below. See, e.g., Wood

v. Georgia, 450 U.S. 261, 265 n.5 (1981) (conflicted counsel would not have raised

conflict); Carlson v. Green, 446 U.S. 14, 16 n.2 (1980) (both parties consented to the

waiver of the procedural default). The issue of the constitutionality of Louisiana’s

jury verdict system is not a new issue. It has been raised in hundreds of cases in

Louisiana, even since the Louisiana Supreme Court definitively upheld the laws in

2009. See Bertrand, 6 So. 3d at 742. It has been raised before this Court numerous

times in the last fifty years. Defendant did not raise a claim that non-unanimous

juries violate the Sixth Amendment, as applied to the States through the

Fourteenth Amendment, in any state court. It could have easily been raised below

but Petitioner explicitly chose not to raise it. And, obviously, the State is not willing

to waive Petitioner’s procedural default in this matter. He should not be able to

raise it now.

III.

THE JUDGMENT OF THE LOUISIANA CIRCUIT COURT WAS CORRECT

The Louisiana First Circuit Court of Appeals denied Petitioner’s appeal

because he did not properly raise the issue in the trial court. However, to the extent

it “addressed” the issue raised by the petition, it spoke of nearly fifty years of this

15

Court’s jurisprudence upon which Louisiana Courts have faithfully relied.8 Just ten

years ago, the Louisiana Supreme Court wrote: “Although the Apodaca decision

was, indeed, a plurality decision rather than a majority one, the Court has cited or

discussed the opinion not less than sixteen times since its issuance. On each of these

occasions, it is apparent that the Court considered that Apodaca’s holding as to nonunanimous jury verdicts represents well-settled law.” Bertrand, 6 So. 3d at 742.

There have also been dozens of cases, some as recently as last year, where this

Court has denied certiorari review on this issue further evidencing that nonunanimous jury verdicts did not violate the United States Constitution. How can a

state appellate court, following and relying upon fifty years of this Court’s rulings,

have been wrong? For the same reasons the State presents in its brief on the merits

in Ramos, it was not.

A. Apodaca Was Decided Correctly and Should Not Be Overruled

There is no reason to overrule Apodaca. As the Court recently explained,

“even in constitutional cases, a departure from precedent demands special

justification.” Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) (cleaned up); see

also id. at 1989 (explaining that the Court “should not invoke stare decisis to uphold

precedents that are demonstrably erroneous”). Apodaca was not a summary

affirmance that was decided without briefing and argument. Whether or not it has

“questionable precedential value,” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 66

(1996), it warrants respect.

8 Indeed, Louisiana expressly relied on Apodaca in 1974 when it readopted its rule and revised the

minimum vote to 10-2. See Records of the Louisiana Constitutional Convention of 1973: Convention

Transcripts, Vol. 7, pp. 1184-1189 (La. Constitutional Convention Records Commission 1977).

16

Even under these circumstances, the Court demands a “special justification

when departing from precedent.” Alleyne v. United States, 570 U.S. 99, 118 (2013)

(Sotomayor, J., concurring) (cleaned up). That makes sense. The doctrine of stare

decisis is about “maintaining settled law” or abandoning it for a different legal rule.

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007). Here,

the “settled law” is the prevailing rule that States may allow criminal convictions

based on jury verdicts that are not unanimous. Accord Alleyne, 570 U.S. at 134 n*

(Alito, J., dissenting). Unlike the excessive fines clause of the Eighth Amendment

held to apply to the States in Timbs v. Indiana, 139 S. Ct. 682, 687 (2019), that has

been the rule since the Founding and has been explicit in this Court’s precedent for

nearly 50 years. It has been relied on by Louisiana, in enacting its constitution and

its statutes, as well as in interpretations of that constitution and those statutes, for

fifty years. It should take a special justification, such as a showing of demonstrable

error, to reverse course at this point.

Overturning Apodaca, moreover, would lead to significant practical problems

and would unsettle related areas of the law. The ink will not even be dry on this

Court’s opinion before the lower courts begin receiving thousands of petitions for

habeas relief seeking to apply a mandatory unanimity rule retroactively to longfinal convictions in Louisiana and Oregon. Indeed, such petitions are already being

filed. And, given that unanimity and a 12-person jury share similar historical and

common-law roots, this Court should be prepared to reconsider the constitutionality

of less-than-12-person juries if it endorses Brooks’ approach to the Sixth

Amendment. Although just two States have allowed convictions by a non17

unanimous vote, at least 40 States allow juries smaller than 12 in some types of

criminal cases.9 In short, overturning Apodaca has little to recommend it but could

have serious negative consequences for both the criminal justice system and this

Court’s jurisprudence.

B. The Sixth Amendment Does Not Require Unanimity.

In his Reasons for Granting the Petition, Petitioner assumes that the Sixth

Amendment’s Jury Trial Clause requires criminal convictions by a unanimous jury.

It does not. Not “every feature of the jury as it existed at common law—whether

incidental or essential to that institution—was necessarily included in the

Constitution wherever that document referred to a ‘jury.’” Williams v. Florida, 399

U.S. 78, 91 (1970). In holding that the Sixth Amendment did not implicitly adopt

the common-law rule mandating twelve jurors, this Court rejected “the easy

assumption . . . that if a given feature existed in a jury at common law in 1789, then

it was necessarily preserved in the Constitution.” Id. at 92. Thus, the proper

9 And what of the peremptory challenge?

Also mentioned in Madison’s original draft of the Sixth

Amendment and thought to have existed for over seven hundred years, see Christopher M. Ferdico,

Note, The Death of the Peremptory Challenge: J.E.B. v. Alabama, 28 Creighton L. Rev. 1177, 1177

(1995), it, too, was well established at the time of Blackstone. See J.E.B. v. Alabama ex rel. T.B., 511

U.S. 127, 147 (1994) (O’Connor, J., concurring). Nevertheless, this Court has determined that

“[t]here is nothing in the Constitution of the United States which requires the Congress to grant

peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is

secured. The number of challenges is left to be regulated by the common law or the enactments of

Congress.” Stilson v. United States, 250 U.S. 583, 587 (1919). It continues to exist today, although in

many varied forms, none exactly like the federal rule (Fed. R. Cr. Proc. 24(b)). At its inception, only a

defendant was entitled to use a peremptory challenge. See JON M. VAN DYKE, JURY SELECTION

PROCEDURES 148 (1977). The prosecution developed a practice of standing jurors aside until twelve

jurors could be agreed to and those jurors “stood aside” were no longer needed. Id. at 148-49. This

practice was controversial but, eventually, upheld by this Court in dicta in dicta in United States v.

Marchant, 25 U.S. (12 Wheat.) 480, 483 (1827). Id. at 149. By the mid-nineteenth century, most

states had adopted laws allowing for peremptory challenges to be used by the prosecution; this

effectively ended the need for standing aside. See id. at 150. By the beginning of the twentieth

century, the government's right to exercise peremptory challenges was firmly established. Id. Must

we go back to the Founding Era and allow only defendants the right to challenge jurors? Must that

right be identical to the federal right—twenty challenges in a capital case, six for the government

and ten for the defendant in a felony case?

18

starting point to determine whether the Sixth Amendment requires unanimous jury

verdicts is not the English common law, but the U.S. Constitution’s text. Neither

Article III nor the Sixth Amendment—the two provisions of the Constitution that

address juries in criminal cases—mentions a unanimity requirement. That omission

is telling because those provisions do expressly mention other attributes of the jury

system. For example, Article III requires that a jury trial take place in the “state

where the said crimes shall have been committed,” and the Sixth Amendment

further restricts the location of the trial to the “State and district” where the crime

occurred.

Furthermore, the legislative history of the Sixth Amendment eliminates any

doubt that the omission of a unanimity requirement was intentional. Madison’s

original draft of the Sixth Amendment expressly guaranteed a jury trial that

included “the requisite of unanimity” and the “other accustomed requisites” of the

jury. Id. at 94. But the Senate rejected that proposal and the Conference Committee

adopted a modified proposal—minus any mention of unanimity or “other

accustomed requisites”—that ultimately became the Sixth Amendment. Id. at 9596. Those omissions are especially notable given that State constitutions at the

time—which were often drafted by the Framers of the U.S. Constitution—took a

variety of approaches to the jury right. Some expressly required unanimity; some

expressly incorporated the English common law; and others merely preserved an

unadorned right to a “jury trial.” Id. at 98 n. 45 (quoting Reinsch, The English

Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American

Legal History 367, 412 (1907)).

19

In short, the Apodaca plurality, and, therefore, the Louisiana First Circuit,

correctly applied settled law in concluding that the Sixth Amendment does not

mandate unanimity. Whether the Framers codified the common-law understanding

in the Sixth Amendment was not up for debate. Williams had already held that the

Sixth Amendment inquiry does not turn on whether a “’given feature existed in a

jury at common law in 1789.’” Apodaca 406 U.S. at 409 (quoting Williams, 399 U.S.

at 92-93). The issue in Apodaca was whether unanimity, “a feature commonly

associated with” the common law, “is constitutionally required.” Id. at 410. Unless

the Court is willing to overturn Williams, the answer should be the same here.

C. A Unanimous Jury Verdict is Not Fundamental to Ordered

Liberty

The question as to whether the right to a unanimous jury verdict, as part of

the Sixth Amendment, is incorporated into the Fourteenth Amendment’s due

process clause is to be answered by deciding whether the right to a unanimous jury

verdict is “fundamental to our scheme of ordered liberty, Duncan v. Louisiana, 391

U.S. 145, 149 (1968), or whether this right is “deeply rooted in this Nation’s history

and tradition.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal

quotation marks omitted); McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).

As noted above, it is not deeply rooted in this Nation’s history and tradition.

It is also not fundamental to our scheme of ordered liberty. The core purpose

of a jury trial “obviously lies in the interposition between the accused and his

accuser of the commonsense judgment of a group of laymen, and in the community

participation and shared responsibility that results from that group’s determination

20

of guilt or innocence.” Williams, 399 U.S. at 100; see also Duncan, 391 U.S. at 156

(“Providing an accused with the right to be tried by a jury of his peers gave him an

inestimable safeguard against the corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge.”).

However, unanimity is not essential to those core purposes. Regardless of

whether the jury’s final vote is 12-0, 11-1, or 10-2, no defendant can be convicted

and deprived of his liberty until a body of his peers has independently reviewed the

evidence against him and found him guilty.

Indeed, recognizing that unanimity is not essential to the purposes

underlying the jury right, a large majority of countries that provide for jury trials do

not require unanimity, including several (such as England and Ireland) that share

common-law roots. In fact, “among the class of countries that embraces the jury, the

unanimous decision rule for guilt and acquittal generally enforced by the American

system is very much an anomaly.” Ethan J. Lieb, A Comparison of Criminal Jury

Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629, 642 (2008).

Instead, “more relaxed majoritarian and super-majoritarian rules clearly dominate

the global jury system landscape.” Id. at 642. Notably, English law—upon which we

based our right to trial by jury and, specifically, any right to a unanimous jury

verdict—no longer requires juries to render verdicts unanimously. It adopted nonunanimity over fifty years ago—at about the same time that this Court upheld

Oregon and Louisiana’s decision to do so. “In England . . . the requirement of a

unanimous verdict was dropped in 1967 by the Criminal Justice Act, which

permitted verdicts of ten to two.” Sally Lloyd-Bostock & Cheryl Thomas, Decline of

21

the “Little Parliament”: Juries and Jury Reform in England and Wales, 62-SPG

Law & Contemp. Probs. 7, 36 (1999).

D. Louisiana’s Non-unanimous Jury Verdict Rule Is Not the Product

of Racial Animus.

Petitioner suggests that the right to a unanimous jury verdict should be

incorporated into the Fourteenth Amendment’s due process clause because it has

“racial origins.” He does not attempt to raise this claim as an equal protection

challenge and did not raise it in the trial court—where evidence of this allegation

should have been offered and rebutted. The record does not even disclose his race or

the racial makeup of the jury or its vote in this case, so he certainly cannot show

that the alleged “racial origins” prejudiced him in any way.

Moreover, although the non-unanimity rule was originally adopted in

Louisiana’s 1898 Constitution—which did include several provisions that were the

unfortunate product of racial animus—all available evidence suggests that the nonunanimity rule was motivated by concerns for judicial efficiency rather than an

improper racial purpose. More importantly, Defendant was not tried pursuant to

any provision in the 1898 Constitution, which is long defunct, having been

superseded by constitutions enacted in 1913, 1921, and 1974. Specifically,

Defendant was tried under a provision in the 1974 Constitution and the companion

jury trial article in the Code of Criminal Procedure.

Records from the 1973 Constitutional Convention show that racial animus

was not a consideration or motivation.10 As the Louisiana Fourth Circuit Court of

The official records and transcripts from the 1973 Constitutional Convention can be accessed

online at http://house.louisiana.gov/cc73/. The discussions of the Committee on Bill of Rights and

10

22

Appeals found, “[t]he revision of a less-than-unanimous jury requirement in the

1974 Constitution [from a vote of 9 jurors to a vote of 10] was not by routine

incorporation of the previous Constitution’s provisions; the new article was the

subject of a fair amount of debate.” Hankton, 122 So. 3d at 1038; see also State v.

Webb, 2013-0146 (La. App. 4th Cir. 01/30/14), 133 So. 3d 258, 286-87, writ denied

sub nom, 2014-0436 (La. 10/03/14); 149 So. 3d 793, cert. denied, Webb v. Louisiana,

135 S. Ct. 1719 (2015). In fact, the stated purpose was judicial efficiency. There was

no mention of race at any time during the Convention, whether in the Committee on

Bill of Rights—where the provision originated—or on the floor. The Committee was

chaired by Rep. Alphonse Jackson, Jr., charter member of the Louisiana Legislative

Black Caucus.11 As stated in Rep. Jackson’s obituary, the 1974 Constitution

“became a blueprint for equal opportunity, fair labor relations, expanded voter

participation and greater protections for the individual.”12 Moreover, the 1974

Louisiana Constitution, unlike prior constitutions, “was adopted by a vote of the

people.” Id. There is no indication that there was any appeal to people based on race

as a reason for the passage of the 10-2 verdict provision of the 1974 Constitution.

The decision below was correct and should be affirmed.

Elections is particularly relevant and is found in Vol. 10 of the Records.

11 See Official Records of the 1973 Constitutional Convention. Id.; see also Rep. Jackson’s obituary at

https://www.legacy.com/obituaries/shreveporttimes/obituary.aspx?n=AlphonseJackson,%20Jr.&pid=1

73611514&fhid=12384 (last visited February 28, 2019) (“As Chairman of the Committee on Bill of

Rights and Elections at the Convention, he worked with other delegates to craft the Louisiana

Constitution of 1974. It became a blueprint for equal opportunity, fair labor relations, expanded

voter participation and greater protections for the individual. This constitution has been called the

most significant achievement in Louisiana's history during the twentieth century.”)

12 Id.

23

IV.

LOUISIANA HAS ALREADY CHANGED ITS JURY VERDICT LAWS TO PROVIDE

FOR UNANIMOUS VERDICTS IN ALL CASES

Petitioner makes no effort in his petition to point out that Louisiana has

already changed its laws on jury verdicts providing, in 2018, by amendment to its

state constitution and its revised statutes, for a unanimous jury verdict in all trials.

Oregon is attempting to do the same thing. Thus, a ruling incorporating a rule

requiring unanimous jury verdicts into the due process clause of the Fourteenth

Amendment would have minimal effect.

This Court has been hesitant to “suddenly constitutionalize” an issue via the

Due Process Clause when “[t]he elected governments of the States are actively

confronting” it, as in Louisiana and Oregon. District Attorney’s Office for Third

Judicial Dist. v. Osborne, 557 U.S. 52, 72-73 (2009). Brooks offers no compelling

reason to short-circuit this robust democratic process. The legislative resolution of a

long-debated policy issue, at least in the state of Louisiana, was a simple, direct,

limited, and sufficient remedy to any perceived problem with non-unanimous juries.

Perhaps more importantly, it also is not fraught with possible collateral

consequences—such as requiring changes to the number of jurors who sit on a jury,

the myriad of ways in which states handle challenges to the placement of jurors, the

right to and procedure for waiving a jury trial, and other collateral issues

surrounding a trial by jury.

There is no need for, nor is there any benefit in, this Court now “suddenly

constitutionalizing” this issue when Louisiana’s elected government has already

actively confronted it.

24

V.

ALTERNATIVELY, THIS COURT SHOULD HOLD DEFENDANT’S PETITION

PENDING THIS COURT’S DECISION IN RAMOS V. LOUISIANA, NO. 18-5924.

Petitioner simply asks this Court to hold his petition pending its decision in

Ramos v. Louisiana. Review was granted on March 18, 2019. It has been fully

briefed and is being argued on October 5, 2019. To the extent Petitioner has

properly and effectively raised the same claim raised in Ramos—that the Sixth

Amendment requires unanimity in jury verdicts and such a requirement must be

applied to the States as a fundamental right under the Due Process Clause—subject

to the doctrine of procedural default, it should be disposed of as appropriate in light

of the decision in Ramos.

Should this Court decide that either the Sixth Amendment does not require

unanimous juries or that any such requirement is not applicable to the States,

because Petitioner has not properly or effectively raised any other claim, his petition

should be denied.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

/s/ Michelle W. Ghetti

_________________________________________

JEFF LANDRY

Attorney General

ELIZABETH BAKER MURRILL

Solicitor General

MICHELLE WARD GHETTI*

Deputy Solicitor General,

*Counsel of Record

Louisiana Department of Justice

25

JOSEPH L. WAITZ

District Attorney

ELLEN DAIGLE DOSKEY

Assistant District Attorney

Office of the District Attorney

Parish of Terrebonne

26