Opposition Brief — Kevin Sheppard, Petitioner v. Louisiana

No. 18-9693

In the Supreme Court of the United States

KEVIN SHEPPARD,

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

RICKY L. BABIN

23rd Judicial District Attorney

LINDSEY D. MANDA

DONALD D. CANDELL

Assistant District Attorneys

P.O. Drawer 750

Donaldsonville, LA 70346-0750

(225) 473-6777

QUESTION PRESENTED

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 ........................................................................................... 1

REASONS FOR DENYING THE WRIT ........................................................................... 3

ARGUMENT ...................................................................................................................... 6

I.

A GENERIC REFERENCE TO MULTIPLE PROVISIONS OF THE UNITED STATES

CONSTITUTION DOES NOT PRESERVE A CONSTITUTIONAL CLAIM ............................... 6

A. Constitutional Issues Cannot Be Smuggled into Court ..................................... 6

B. Petitioner is Foreclosed from Raising an Equal Protection Claim .................... 9

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

NOT PRESSED IN THE STATE COURTS BELOW CREATES A WEIGHTY

PRESUMPTION AGAINST REVIEW ................................................................................ 9

III. THE JUDGMENT OF THE LOUISIANA CIRCUIT COURT WAS CORRECT ........................ 11

A. Apodaca Was Decided Correctly and Should Not Be Overruled ..................... 13

B. The Sixth Amendment Does Not Require Unanimity. .................................... 14

C. A Unanimous Jury Verdict is Not Fundamental to Ordered Liberty ............. 16

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

Racial Animus.................................................................................................... 17

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

UNANIMOUS VERDICTS IN ALL CASES ...................................................................... 18

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

THIS COURT’S DECISION IN RAMOS V. LOUISIANA, NO. 18-5924. ............................... 19

CONCLUSION ................................................................................................................. 19

ii

TABLE OF AUTHORITIES

Cases

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

Ballew v. Georgia, 435 U.S. 223 (1978) ....................................................................... 12

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988) ....................................... 4, 7

Barbour v. Louisiana, 562 U.S. 1217 (2011) ............................................................... 12

Baumberger v. Louisiana, 138 S.Ct. 392 (2017) ......................................................... 12

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

of California, Inc., 522 U.S. 192 (1997) ...................................................................... 9

Blackburn v. Thomas, 450 U.S. 953 (1981) ................................................................. 12

Bowen v. Oregon, 558 U.S. 815 (2009) ......................................................................... 12

Brown v. Louisiana, 447 U.S. 323 (1980) .................................................................... 12

Burch v. Louisiana, 441 U.S. 130 (1979) ..................................................................... 12

Colgrove v. Battin, 413 U.S. 149 (1973)....................................................................... 11

Crist v. Bretz, 437 U.S. 28 (1978)................................................................................. 12

District Attorney’s Office for Third Judicial Dist. v. Osborne,

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

Dove v. Louisiana, 138 S.Ct. 1279 (2018) .................................................................... 12

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................................................. 16

Evangelisto Ramos v. Louisiana, 139 S. Ct. 1318 (2019) ................................... passim

Gamble v. United States, 139 S. Ct. 1960 (2019) ........................................................ 13

Hathorn v. Lovorn, 457 U.S. 255 (1982) .................................................................. 3, 11

Herrera v. Oregon, 562 U.S. 1135 (2011) ..................................................................... 12

Holland v. Illinois, 493 U.S. 474 (1990) ...................................................................... 12

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

510 U.S. 27 (1993) ................................................................................................... 4, 7

iii

Jimmy Swaggart Ministries v. Bd. of Equalization of Cal.,

493 U.S. 378 (1990) ................................................................................................... 11

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007)................... 13

Louisiana v. Hankton, 135 S.Ct. 195 (2014) ............................................................... 12

Louisiana v. Miller, 568 U.S. 1157 (2013) ................................................................... 12

Louisiana v. Webb, 135 S.Ct. 1719 (2015) ................................................................... 12

Ludwig v. Massachusetts, 427 U.S. 618 (1976) ........................................................... 12

McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) .............................................. 12

McElveen v. Louisiana, 568 U.S. 1163 (2013) ............................................................. 12

McKoy v. North Carolina, 494 U.S. 433 (1990) ........................................................... 12

Michigan v. Payne, 412 U.S. 47 (1973) ........................................................................ 12

Michigan v. Tyler, 436 U.S. 499 (1978) ....................................................................... 11

Mincey v. Vannoy, 138 S.Ct. 394 (2017) ...................................................................... 12

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ................................................ 11

Rita v. United States, 551 U.S. 338 (2007) .................................................................. 12

Schad v. Arizona, 501 U.S. 624 (1991) ........................................................................ 12

Seminole Tribe of Fla. v. Fla., 517 U.S. 44 (1996) ...................................................... 13

Sims v. Louisiana, 138 S.Ct. 1592 (2018) ................................................................... 12

Spaziano v. Florida, 468 U.S. 447 (1984) .................................................................... 12

State v. Fleury, 2001–0871 (La. 10/16/01), 799 So.2d 468. ..................................... 9, 10

State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709. ............................................. 10

State v. Schoening, 2000–0903 (La. 10/17/00), 770 So.2d 762 ................................ 9, 10

State v. Webb, 2013-0146 (La. App. 4th Cir. 01/30/14), 133 So. 3d 258 ..................... 17

Taylor v. Illinois, 484 U.S. 400 (1988) ....................................................................... 4, 7

Taylor v. Louisiana, 419 U.S. 522 (1975) .................................................................... 12

Timbs v. Indiana, 139 S.Ct. 682 (2019)................................................................. 12, 13

iv

United States v. Gaudin, 515 U.S. 506 (1995) ............................................................ 12

Victor v. Nebraska, 511 U.S. 1 (1994) .......................................................................... 12

Walker v. Martin, 562 U.S. 307 (2011) ........................................................................ 11

Webb v. Louisiana, 135 S. Ct. 1719 (2015) .................................................................. 18

Welch v. United States, 136 S.Ct. 1257 (2016) ............................................................ 12

Williams v. Florida, 399 U.S. 78 (1970) ................................................................ 14, 16

Yee v. City of Escondido, 503 U.S. 519 (1992) ............................................................... 8

Statutes

La. Rev. Stat. 14:30.1 ..................................................................................................... 2

Louisiana Constitution article I, § 17(A) ....................................................................... 1

U.S. Const. amend. 5 .................................................................................................. 6, 9

U.S. Const. amend. 6 ............................................................................................ passim

U.S. Const. amend. 8 .......................................................................................... 7, 12, 13

U.S. Const. amend. 14 .......................................................................................... passim

Rules

Supreme Court Rule 14.1 ........................................................................................... 7, 8

Supreme Court Rule 14.4 ............................................................................................... 7

Other Authorities

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

Countries, 5 Ohio St. J. Crim. L. 629, 642 (2008) .................................................... 16

Reinsch, The English Common Law in the Early American Colonies, in 1

Select Essays in Anglo-American Legal History 367, 412 (1907) ........................... 15

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

COURT PRACTICE 463 (10th Ed. 2013) .......................................................................... 7

Sally Lloyd-Bostock & Cheryl Thomas, Decline of the “Little Parliament”:

Juries and Jury Reform in England and Wales, 62-SPG Law &

Contemp. Probs. 7, 36 (1999) .................................................................................... 17

v

CONSTITUTIONAL AND STATUTORY AUTHORITY

The text of the statute that existed at the time of Mr. Sheppard’s 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.

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 persons, all of whom must concur

to render a verdict.

STATEMENT OF THE CASE1

Facts of the Crime. In the middle of an argument over a past debt for drugs,

1 See Pet’r. Appx. 1a – 3a.

1

Petitioner turned from his place in the front passenger seat of a vehicle and shot

multiple rounds into the back seat hitting two of the five passengers in the car, killing

one and seriously injuring the other. He then fled in the vehicle, drove to the

Mississippi River levee, and set the car on fire. After that, he walked to his brother’s

apartment and went to sleep. He turned himself in the following day - and at trial the other three passengers in the car identified Petitioner as the person who shot and

killed the victim.

Procedural background. A grand jury indicted Petitioner with second

degree murder, a violation of Louisiana Revised Statutes 14:30.1. He did not file any

pretrial motions challenging the constitutionality of Louisiana’s non-unanimous jury

verdict laws. And at trial, he did not file any requests for a jury instruction requiring

unanimity; nevertheless, the lower court opinion observed that he verbally stated he

“was raising ‘the normal 10 to 2 verdict objection’ and then clarified, ‘we would object

to the non-unanimous verdict structure that’s in Louisiana law …. It violates [the

defendant’s] constitutional rights, Your Honor.’” Pet’r. Appx. 2a. Petitioner was

convicted by a verdict of ten to two. Post-trial, he abandoned the issue in his Motion

for Post-Verdict Judgment of Acquittal although, while arguing the motion, he simply

noted “’this was a 10 to 2 verdict, and … we’re one of only two states left in the country

that sends people to jail for life based on those types of verdicts.” He was sentenced

to life in prison without probation or parole.

Petitioner filed both a counseled and pro se appeal with the State First Circuit

Court of Appeals. The court held that “[u]nder both state and federal jurisprudence,

2

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.” Regarding equal protection, the First Circuit

noted that both the Louisiana Supreme Court and this Court had already found that

to be a meritless argument. Pet’r. Appx. 2a-3a.

The Louisiana Supreme Court denied review without written opinion.

Petitioner requests review by this Court, raising a Sixth Amendment incorporation

claim. Pet’r. Appx. 6a.

REASONS FOR DENYING THE WRIT

Even if this Court determines that the Sixth Amendment requires unanimity

to convict in criminal jury trials in the States, this petition should be denied because

the sole issue raised in the petition was not properly raised at trial and is procedurally

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

Because there is an adequate and independent state-law basis for upholding his

conviction, the Court should not hold his petition for this Court’s decision in Ramos

v. Louisiana, 139 S. Ct. 1318 (2019) (No. 18-5924). See Hathorn v. Lovorn, 457 U.S.

255, 262–63 (1982).

Additionally, Petitioner’s writ application presents no question and makes no

argument. The purported “Question Presented” lists three constitutional provisions

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

how those provisions generate a question for this Court to resolve. In other words, he

does not actually pose any question at all.

It is the Petitioner’s duty to present a question for this Court to consider for

3

review. And this Court has repeatedly disapproved 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 attempting to incorporate any possible

viable question with a vague citation to certain constitutional amendments. Many

books line the shelves of law school libraries on each one of the amendments he has

listed and reams of law review articles exist on related questions. His question is so

broad that it amounts to no question at all, leaving the specifics as guesswork for the

State and this Court. Consequently, the Petition 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 issue arising

from the Bill of Rights.” Taylor v. Illinois, 484 U.S. 400, 407 n.9 (1988).

Further obfuscating his claim, he presents no legal argument to support or

narrow his petition. In his Reasons for Granting the Writ, he states, in two

paragraphs, nothing more than the fact that this Court 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].” Louisiana submits that such a generalized grievance insufficiently

presents even the issue presented in Ramos.

Then, with neither argument nor supporting evidence, Petitioner asserts,

4

“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” and “[t]his Court should overrule Apodaca’s idiosyncratic and

incorrect holding and apply the Sixth Amendment’s unanimity guarantee to the

states.” Petitioner appears to conflate the Sixth Amendment claim addressed in

Apodaca with an equal protection claim. Moreover, Petitioner neither asserts nor

briefs an equal protection claim.

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

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

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

precedent, including Apodaca v. Oregon, was decided correctly. 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. In fact, 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.

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

5

to convict. And current law requires unanimity for conviction of crimes committed

after January 1, 2019. Thus, any change the Court might wish to actuate has already

been realized.

If this Court finds the Petitioner has adequately preserved or presented any

claim, Louisiana requests that the petition be held pending this Court’s decision in

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

ARGUMENT

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,2 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 the matter, he contends, in only two paragraphs, that this

Court has granted a petition for a writ of certiorari in Evangelisto 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]” because the Sixth Amendment requires a unanimous verdict and “full

incorporation is an established principle on which the Court itself has relied for

2 U.S. Const. amend. 5.

6

several decades.” Then, with absolutely no argument or supporting evidence, asserts

, “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 insufficient 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 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 does not bring it

before the Court. Any such subsidiary issue must be fairly included in the question

presented for the Court’s review. See Izumi, 510 U.S. at 32. Supreme Court Rule 14.1

7

addresses a comparable problem and limits the scope of review to questions presented

or fairly included in the question presented as well. In Yee v. City of Escondido, the

Court 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 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).

The Court has expressed concern with “smuggling” after certiorari is granted,

but the problem begins with vague questions presented in the petition itself.

Petitioner has not clearly stated his constitutional claim. 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

8

Court might conceivably find present” in the Fifth, Sixth, and Fourteenth

Amendments.

B. Petitioner is Foreclosed from Raising an Equal Protection Claim

If Petitioner sufficiently preserved a Sixth Amendment claim, he certainly has

not done so with 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 re-examination of Apodaca v. Oregon. The words

“equal protection” are mentioned nowhere in the petition. 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 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

NOT PRESSED IN THE STATE COURTS BELOW CREATES A WEIGHTY

PRESUMPTION AGAINST REVIEW

It is well settled in Louisiana that the party challenging the constitutionality

of any provision of Louisiana law bears the burden of proving it is unconstitutional

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

9

must be specially pleaded; and third, the grounds outlining the basis of

unconstitutionality must be 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. . . .”)).

Petitioner did not preserve his claims under State law. Although a verbal

objection appears to have been lodged at some point during trial, it is unclear when.

Petitioner has not identified anywhere in the record where the constitutionality of

the unanimity rule was specially pleaded; he also fails to show the particularized

grounds outlining the basis of unconstitutionality. The State had no reasonable notice

or opportunity at trial to present evidence, brief, or present argument on his

purported claims.

10

Failure to comply with a state procedural rule is an independent and adequate

state ground barring this Court’s review of a federal question. Hathorn, 457 U.S. at

262–63 (citing Michigan v. Tyler, 436 U.S. 499, 512, n.7 (1978); New York Times Co.

v. Sullivan, 376 U.S. 254, 264 n.4 (1964)). “[F]ederal law takes the state courts as it

finds them.” Id. (quotation omitted). This rule is “bottomed deeply in belief in the

importance of state control of State judicial procedure.” Id. This Court has

acknowledged that States have great latitude to establish the structure and

jurisdiction of their own courts. Id.; see also Walker v. Martin, 562 U.S. 307, 316

(2011); Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 398

(1990).

Because there is an adequate and independent State-law basis for upholding

his conviction, the Court should not hold Sheppard’s petition awaiting this Court’s

decision in Ramos v. Louisiana, 139 S. Ct. 1318 (2019) (No. 18-5924). See Hathorn v.

Lovorn, 457 U.S. 255, 262–63 (1982). It should deny the writ.

III.

THE JUDGMENT OF THE LOUISIANA CIRCUIT COURT WAS CORRECT

The Louisiana First Circuit Court of Appeals spoke of nearly fifty years of this

Court’s jurisprudence upon which Louisiana Courts have faithfully relied.3 The

Louisiana Supreme Court recognized that this Court has cited or discussed the

opinion not less than nineteen times since its issuance.4 On each of these occasions,

3 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).

Bertrand, 6 So. 3d at 742. See Colgrove v. Battin, 413 U.S. 149, 169 (1973) (Marshall,

dissenting)(neither Apodaca, Johnson nor Williams squarely presented the Court with the problem of

defining the meaning of jury trial in a federal context.); Michigan v. Payne, 412 U.S. 47, 49 (1973);

4

11

the Court considered that Apodaca’s holding as to non-unanimous jury verdicts

represents well-settled law.

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.5 For the

same reasons the State presents in its brief on the merits in Ramos, the State

appellate court was not wrong.

Taylor v. Louisiana, 419 U.S. 522, 528 (1975) (Defendants are not entitled to a jury of any particular

composition; ‘a jury will come to such a (commonsense) judgment as long as it consists of a group of

laymen representative of a cross section of the community who have the duty and the opportunity to

deliberate . . . on the question of a defendant's guilt.’); Ludwig v. Massachusetts, 427 U.S. 618, 625

(1976) (the jury's verdict need not be unanimous; what is important is that the verdict reflect the

commonsense judgment of a group of laymen); Ballew v. Georgia, 435 U.S. 223, 229 (1978); Crist v.

Bretz, 437 U.S. 28, 37 (1978) (when jeopardy attaches); Burch v. Louisiana, 441 U.S. 130, 136 (1979)

(noting that in Apodaca, it had upheld a state statute providing for 10 out of 12 verdicts and that there

was no difference between those juries required to act unanimously and those permitted to act by votes

of 10 to 2 and that unanimity did not materially contribute to the exercise of the jury's judgment or as

a necessary condition to a jury representing a fair cross section of the community); Brown v. Louisiana,

447 U.S. 323, 331 (1980) (10-to-2 vote in state trial does not violate the Constitution); Blackburn v.

Thomas, 450 U.S. 953, 955 (1981); Spaziano v. Florida, 468 U.S. 447, 482, fn 26 (1984) (Stevens,

concurring); Holland v. Illinois, 493 U.S. 474, 511 (1990) (Stevens, dissenting) (we have permitted

nonunanimous verdicts); McKoy v. North Carolina, 494 U.S. 433, 468 (1990) (Scalia, dissenting) (we

have approved verdicts by less than a unanimous jury.); Schad v. Arizona, 501 U.S. 624, 630 (1991)

(the Sixth, Eighth, and Fourteenth Amendments do not require a unanimous jury in state cases);

Victor v. Nebraska, 511 U.S. 1, 8 (1994); United States v. Gaudin, 515 U.S. 506, 511, n. 2 (1995) (jury

unanimity is not constitutionally required); Rita v. United States, 551 U.S. 338, 384–85 (2007) (Souter,

dissenting) (the Sixth Amendment right to trial by jury otherwise relies on history for details, and the

practical instincts of judges and legislators for implementation in the courts.); McDonald v. City of

Chicago, Ill., 561 U.S. 742, n. 14 (2010) (noting the Court had held that the Sixth Amendment does

not require a unanimous jury verdict in state criminal trials); see also, 561 U.S. at 867–68 (Stevens,

dissenting) (noting the Court had resisted a uniform approach to the Sixth Amendment's criminal jury

guarantee, demanding 12–member panels and unanimous verdicts in federal trials, yet not in state

trials.); Welch v. United States, 136 S.Ct. 1257, 1275 (2016) (Thomas, dissenting) (the Court's jury

unanimity rule is, undoubtedly, “procedural”); Timbs v. Indiana, 139 S.Ct. 682, 687 (2019).

See, e.g., Sims v. Louisiana, 138 S.Ct. 1592 (2018); Dove v. Louisiana, 138 S.Ct. 1279 (2018);

Baumberger v. Louisiana, 138 S.Ct. 392 (2017); Mincey v. Vannoy, 138 S.Ct. 394 (2017); Barbour v.

Louisiana, 562 U.S. 1217 (2011); Louisiana v. Webb, 135 S. Ct. 1719 (2015); Louisiana v. Hankton, 135

S. Ct. 195 (2014); Louisiana v. Miller, 568 U.S. 1157 (2013); McElveen v. Louisiana, 568 U.S. 1163

(2013); Herrera v. Oregon, 562 U.S. 1135 (2011); Bowen v. Oregon, 558 U.S. 815 (2009).

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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). 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.

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 Amendment6 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 lower courts already are receiving a

crush of petitions for relief seeking to apply a mandatory unanimity rule retroactively

6 U.S. Const. amend. 8.

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to long-final convictions in Louisiana and Oregon. 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 a revisionist approach to the Sixth Amendment. Although just two States

and the Territory of Puerto Rico have permitted felony convictions by a nonunanimous vote, at least 40 States allow juries smaller than 12 in some types of

criminal cases. 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 states that the Sixth

Amendment requires a unanimous verdict to convict a defendant. Although a number

of this Court’s opinions reference a federal requirement of unanimity, all do so in

dicta and based on an assumption. None have critically considered the history of jury

unanimity in this country.

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 commonlaw 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 starting point to determine

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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 95-96. Those

omissions are especially notable given that State constitutions at the time—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)).

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

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

mandate unanimity.

C. A Unanimous Jury Verdict is Not Fundamental to Ordered

Liberty

Unanimity 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

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

U.S. 145, 156 (1968) (“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.”).

But 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

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relaxed majoritarian and super-majoritarian rules clearly dominate the global jury

system landscape.” Id. at 642. Notably, English law no longer requires juries to

render verdicts unanimously. It adopted non-unanimity 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 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 Louisiana’s jury verdict law has “racial origins,”

although he does not ground that claim in the equal protection clause. He also did not

raise that claim in the trial court; thus there is no evidence in the record of the origins

of this provision.

More importantly, Petitioner was not tried pursuant to the original nonunanimous verdict provisions. He was tried under a provision in the 1974

Constitution and the companion article in the Code of Criminal Procedure. Records

from the 1973 Constitutional Convention show that racial animus was not a

motivation,7 and Louisiana courts have recognized same. See e.g. State v. Hankton,

2012-0375 (La. App. 4 Cir. 2013), 122 So. 3d 1028, 1038; see also State v. Webb, 20130146 (La. App. 4 Cir. 01/30/14), 133 So. 3d 258, 286-87, writ denied sub nom, 20147 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 Elections is

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

17

0436 (La. 10/03/14); 149 So. 3d 793, cert. denied, Webb v. Louisiana, 135 S. Ct. 1719

(2015). The purpose was judicial efficiency. There was no mention of race at any time

during the 1973 Convention, whether in the Bill of Rights Committee —where the

provision originated—or on the floor. Had racial motivation been a concern, Rep.

Alphonse Jackson, Jr., charter member of the Louisiana Legislative Black Caucus

and chairman of the Bill of Rights Committee, would surely have objected.8 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.”9

IV.

LOUISIANA HAS ALREADY CHANGED ITS JURY VERDICT LAWS TO PROVIDE

FOR UNANIMOUS VERDICTS IN ALL CASES

Petitioner ignores the important fact that in 2018 Louisiana changed its laws

on jury verdicts and now requires unanimous jury verdicts in all felony trials for

crimes committed after January 1, 2019. 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). Petitioner offers no compelling reason to short-circuit this robust democratic

8 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=

173611514&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.”)

9 Id.

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process. The legislative resolution of this long-debated policy issue provides a clear

date for implementation of a new system that avoids any negative collateral

consequences.

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.

V.

ALTERNATIVELY, THIS COURT SHOULD HOLD SHEPPARD’S PETITION PENDING

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

Petitioner asks this Court to hold his petition pending its decision in Ramos v.

Louisiana, which was argued October 7, 2019. Only if this Court finds Petitioner

properly raised the same claim as in Ramos, then this Petition should be held and

disposed of in light of the Ramos decision.

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, his

petition should be denied because Petitioner has not properly raised any other claim.

CONCLUSION

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

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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

Ricky L. Babin

23rd Judicial District Attorney

Lindsey D. Manda

Donald D. Candell

Assistant District Attorneys

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