Amicus Curiae Brief — Thedrick Edwards, Petitioner v. Darrel Vannoy, Warden

No. 19-5807

IN THE

Supreme Court of the United States

THEDRICK EDWARDS,

Petitioner,

v.

DARREL VANNOY, WARDEN,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC., IN SUPPORT OF PETITIONER

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL*

OMAVI SHUKUR

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

sspital@naacpldf.org

July 22, 2020

MAHOGANE D. REED

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW Suite 600

Washington, DC 20005

(202) 682-1300

mreed@naacpldf.org

*Counsel of Record

Counsel for Amicus Curiae

NAACP Legal Defense &

Educational Fund, Inc.

TABLE OF CONTENTS

PAGE

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

INTERESTS OF AMICUS CURIAE ..........................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................4

I.

Ramos

Clears

Teague’s

Nonretroactivity

Bar. ........................................................................4

A. Jury Unanimity is Necessary to

Prevent “An Impermissibly Large

Risk” of an Inaccurate Conviction.

.........................................................................5

B. Ramos Differs from Past New

Rules Concerning the Sixth

Amendment Jury Guarantee. ........................8

II. The Racist Design and Operation of

Louisiana’s and Oregon’s Nonunanimous Jury Rules Support

Retroactive Application of Ramos. .....................14

A. Louisiana’s Non-Unanimous Jury

Provision Was Designed to

Undermine the Accuracy of

Criminal Convictions. ..................................14

ii

B. Louisiana’s Non-Unanimous Jury

Provision Functioned as Intended.

.......................................................................17

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

iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Allen v. Hardy,

478 U.S. 255 (1986).................................. 11, 12, 13

Batson v. Kentucky,

476 U.S. 79 (1986) ................................................11

Bloom v. Illinois,

391 U.S. 194 (1968) ................................................9

Buck v. Davis,

137 S. Ct. 759 (2017)............................................20

DeStefano v. Woods,

392 U.S. 631 (1968) ................................................9

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................9

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ..........................................12

Johnson v. Louisiana,

406 U.S. 380 (1972) .............................................10

Johnson v. Louisiana,

406 U.S. 399 (1972) ......................................6, 7, 10

Miller-El v. Dretke,

545 U.S. 231 (2005) ..............................................11

iv

TABLE OF AUTHORITIES

(CONTINUED)

PAGE(S)

CASES

Montgomery v. Louisiana,

136 S. Ct. 718 (2016)..............................................4

Peters v. Kiff,

407 U.S. 493 (1972) ..............................................12

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .................................. passim

Ring v. Arizona,

536 U.S. 584 (2002) ................................................9

Schriro v. Summerlin,

542 U.S. 348 (2004) ...................................... passim

State v. Gipson,

No. 2019-KH-1815 (La. June 3,

2020) ......................................................... 14, 17, 20

Teague v. Lane,

489 U.S. 288 (1989) ............................................2, 4

United States v. Fordice,

505 U.S. 717 (1992) ..............................................17

United States v. Lee,

317 F.3d 26 (1st Cir. 2003) ....................................8

v

TABLE OF AUTHORITIES

(CONTINUED)

PAGE(S)

CASES

Whorton v. Bockting,

549 U.S. 406 (2007) ...................................... passim

CONSTITUTIONS

La. Const. art. I, § 17 (1974) .....................................16

La. Const. art. 116 (1898) .........................................16

OTHER AUTHORITIES

Emily Bazelon, Two Jurors Voted to

Acquit. He Was Convicted of Murder

Anyway., N.Y. Times Magazine, Jan.

15, 2020. ...............................................................18

Kim Taylor-Thompson, Empty Votes in

Jury Deliberations, 113 Harv. L.

Rev. 1261 (2000) ............................................18, 19

Official Journal of the Proceedings of

the Constitutional Convention of the

State of Louisiana: Held in New

Orleans, Tuesday, February 8, 1898

(printed by H.J. Hearsey, 1898) ..........................16

Reid Hastie, Steven D. Penrod & Nancy

Pennington, Inside the Jury 163 (edition, 1983) .........................................................10

vi

TABLE OF AUTHORITIES

(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Robert J. Smith & Bidish J. Sarma,

How and Why Race Continues to

Influence the Administration of

Criminal Justice in Louisiana, 72

La. L. Rev. 361 (2012) ....................................15, 19

Thomas Ward Frampton, The Jim Crow

Jury, 71 Van. L. Rev. 1593 (2018) ..... 15, 17, 18, 19

1

INTERESTS OF AMICUS CURIAE 1

The NAACP Legal Defense and Educational

Fund, Inc. (LDF) is the nation’s first and foremost

civil rights organization. Since its founding in 1940,

LDF has fought to secure the constitutional promise

of equality for all people. LDF’s advocacy has included

efforts to enforce the Fourteenth Amendment’s

promise of equality, see, e.g., Cooper v. Aaron, 358

U.S. 1 (1958), Brown v. Bd. of Educ. of Topeka, 347

U.S. 483 (1954), and to overcome the persistent and

pernicious influence of race in the criminal justice

system by fighting to eradicate discrimination that

affects jury verdicts, see, e.g., Ham v. South Carolina,

409 U.S. 524 (1973), Alexander v. Louisiana, 405 U.S.

625 (1972), Swain v. Alabama, 380 U.S. 202 (1965).

LDF submitted an amicus brief in Ramos v.

Louisiana, 140 S. Ct. 1390 (2020), urging this Court

to hold that Louisiana’s non-unanimous jury rule was

unconstitutional under the Sixth Amendment’s jury

guarantee, which applies to all States through the

Fourteenth Amendment. The question presented in

this

case—whether

Ramos

should

apply

retrospectively to cases on federal collateral review—

has major implications for the disproportionately

Black defendants sentenced by non-unanimous juries

and would restore the lost voices of dissenting

minority jurors.

Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae state that no counsel for a party authored this brief in

whole or in part and that no person other than amicus curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief. All parties have

consented to the filing of this brief.

1

2

LDF submits this brief to aid the Court in

deciding whether to give Ramos retroactive

application under Teague v. Lane, 489 U.S. 288

(1989).

INTRODUCTION AND

SUMMARY OF ARGUMENT

In Ramos v. Louisiana, 140 S. Ct. 1390 (2020),

this Court vindicated a fundamental rule of

constitutional procedure. In holding that the Sixth

Amendment’s jury guarantee encompasses the

requirement that a unanimous jury reach a guilty

verdict in state criminal trials, this Court affirmed

that defendants prosecuted in state court are entitled

to the same constitutional guarantees enshrined in

the Sixth Amendment for defendants in federal court.

The Court also acknowledged and repudiated the

racist and xenophobic origins of Louisiana’s and

Oregon’s non-unanimous jury provisions, untethering

criminal convictions in those States from their nonunanimous jury rules’ discriminatory histories. The

rule announced in Ramos automatically inured to the

benefit of defendants whose cases were pending on

direct appeal. And because of a recent amendment to

Louisiana’s State constitution, persons tried before a

jury for serious crimes after January 1, 2019 must

also be found guilty by a unanimous jury to be

convicted. Ramos’s unanimity requirement should

also apply retroactively to cases pending on federal

collateral review.

Teague v. Lane, 489 U.S. 288, 305 (1989)

generally bars retroactive application of new

constitutional rules but provides an exception for

“watershed rules of criminal procedure” [that]

3

“implicat[e] the fundamental fairness and accuracy of

the criminal proceeding.” Schriro v. Summerlin, 542

U.S. 348, 352 (2004) (internal quotations omitted).

Assuming arguendo that Ramos announced a new

rule, it fits that bill. The Court’s rule requiring

unanimity directly implicates the accuracy of a

criminal conviction. The logic is straightforward. By

definition, a habeas petitioner seeking to raise a

meritorious Ramos claim likely would not have been

convicted had Ramos been the rule at the time of their

trial. Such petitioners were convicted by juries in

which at least one juror voted to acquit. And Ramos

constitutionalizes the rule that had long been in place

in 48 states and federal courts: “a single juror’s vote

to acquit is enough to prevent a conviction.” Ramos,

140 S. Ct. at 1393. Ramos is therefore sui generis from

a Teague perspective. Unlike with any other

constitutional rule of criminal procedure this Court

has analyzed using the Teague framework, we know

that a conviction obtained in violation of Ramos’s

unanimity requirement is inaccurate because at least

one juror voted to acquit.

The history of non-unanimous jury rules also

supports retrospective application of Ramos’s

unanimity requirement. This case arises out of

Louisiana, whose non-unanimous jury rule was

designed with the expressed racist goal of convicting

Black defendants over the muted dissent of Black

jurors. This design was also intended to undermine

the accuracy of the factfinding process by convicting

Black defendants because of their race, regardless of

the evidence. For 120 years, until Louisiana voters

amended their State Constitution to bar nonunanimous jury verdicts in 2018, Louisiana’s non-

4

unanimous jury rule worked as designed. A rule that,

by design and operation, undermined the integrity of

the factfinding process by disregarding the voices of

Black jurors epitomizes fundamental unfairness.

ARGUMENT

I.

Ramos Clears Teague’s Nonretroactivity

Bar.

This Court has held that, as a general matter,

“new [constitutional] rules . . . should not be applied

retroactively to cases on collateral review.” 2 Teague,

489 U.S. at 305. There are two recognized exceptions

to this general rule. “First, courts must give

retroactive effect to new substantive rules of

constitutional law.” Montgomery v. Louisiana, 136 S.

Ct. 718, 728 (2016). Second, courts must give

retroactive effect to “watershed rules of criminal

procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” Summerlin, 542

U.S at 352 (internal citations and quotations

omitted). Put another way, a new constitutional rule

of criminal procedure is watershed if it is “necessary

to prevent an impermissibly large risk of an

inaccurate

conviction”

and

“‘alter[s]

our

understanding of the bedrock procedural elements

essential to the fairness of a proceeding.’” Whorton v.

Bockting, 549 U.S. 406, 418 (2007) (citation omitted).

“That a new procedural rule is fundamental in some

abstract sense is not enough,” however; “the rule must

be one ‘without which the likelihood of an accurate

2 This Brief assumes that the rule announced in Ramos is a new

rule. But see Brief of Petitioner at 12–21 (explaining why Ramos

is an old rule under Teague).

5

conviction is seriously diminished.’” Summerlin, 542

U.S. at 352 (emphasis in original) (quoting Teague,

489 U.S. at 313). Since it decided Teague, this Court

has not applied a new procedural rule retroactively,

and it has said it is “unlikely” that a new watershed

rule of criminal procedure has “yet to emerge.”

Whorton, 549 U.S. at 416 (citation omitted).

But Ramos is, by its nature, the exceptional

procedural rule that—assuming it is in fact a new

rule—and must apply retroactively under Teague.

Ramos’s unanimity requirement unquestionably

disturbs the accuracy of guilty verdicts reached and

rendered by non-unanimous juries. And its holding

alters our temporary misunderstanding of the Sixth

Amendment’s jury mandate as applied to the states,

restoring the unanimity requirement that for

centuries has been recognized as an essential

component of a fair trial under Anglo-American law.

A. Jury Unanimity is Necessary to Prevent

“An Impermissibly Large Risk” of an

Inaccurate Conviction.

Retroactive application of Ramos’s unanimity

rule is necessary to prevent “an impermissibly large

risk” of an inaccurate conviction. Whorton, 549 U.S.

at 418. More than merely “directed toward the

enhancement of reliability and accuracy in some

sense,” id. (citation omitted), the unanimity rule

announced in Ramos directly implicates the validity

and accuracy of non-unanimous guilty verdicts.

Before Ramos, in the 48 states and federal

courts that have long required jury unanimity, a

single dissenting juror’s vote to acquit would have

6

resulted in a mistrial. See Ramos, 140 S. Ct. at 1393

(“In 48 States and federal court, a single juror’s vote

to acquit is enough to prevent a conviction.”). But

Louisiana and Oregon “ha[d] long punished people

based on 10-to-2 verdicts.” Id. That changed after

Ramos, which now requires that all convictions for

serious crimes be supported by the assent and

agreement of all twelve jurors.

A conviction obtained in violation of Ramos is

inherently inaccurate: It signifies that at least one

juror voted to acquit, and therefore, pursuant to the

Sixth Amendment’s unanimity rule, the defendant

should not have been convicted. It also signifies that

at trial, the prosecution failed to do what the Sixth

and Fourteenth Amendments require before the

government may take away someone’s liberty:

convince a unanimous jury of the person’s peers that

the person is guilty beyond a reasonable doubt.

Justice Marshall recognized this point in his

dissenting opinion in Johnson v. Louisiana, 406 U.S.

399 (1972). In explaining why Louisiana’s nonunanimous rule was unconstitutional, Justice

Marshall pointed out that the “[t]he doubts of a single

juror are . . . evidence that the government has failed

to carry its burden of proving guilt beyond a

reasonable doubt.” Id. at 403. Justice Marshall

further recognized the essential link between the jury

trial right and the burden of proof in criminal cases,

which “[t]ogether . . . occupy a fundamental place in

our constitutional scheme, protecting the individual

defendant from the awesome power of the State.”

Johnson, 406 U.S. at 400.

7

Justice

Marshall

further

distinguished

between: (1) the scenario where the jury is composed

of only nine people, and those nine vote to convict—in

that case, “we can never know, and it is senseless to

ask, whether the prosecutor might have persuaded

additional jurors [of the defendant’s guilt]”; and (2)

the scenario where a minority of jurors “entertain

doubts” of the defendant’s guilt “after hearing all the

evidence”—in that case, “the prosecutor has tried and

failed to persuade those jurors of the defendant’s

guilt.” Johnson, 406 U.S. at 400–01. “In such

circumstances,” he concluded, “it does violence to

language and to logic to say that the government has

proved the defendant’s guilt beyond a reasonable

doubt.” Johnson, 406 U.S. at 401.

Justice Marshall’s Johnson dissent was

vindicated by the majority of this Court in Ramos. It

is now clear that a guilty verdict over dissenting

jurors’ votes to acquit is inaccurate because guilty

verdicts, by definition, must be unanimous post

Ramos. See Ramos, 140 S. Ct. at 1397. Nonunanimous guilty verdicts obtained prior to Ramos

improperly lowered the government’s burden from

proving all the elements of the offense to all of the

jurors beyond a reasonable doubt, to proving all the

elements to most of the jurors. It follows that the rule

announced in Ramos is necessary to prevent an

impermissibly large risk of inaccurate convictions.

Whorton, 549 U.S. at 418.

Ramos’s recognition that the jury unanimity

rule applies with equal force to the States also alters

(or,

more

precisely

stated,

restores)

our

8

understanding of the bedrock procedural elements

essential to the fairness of criminal jury trials. “The

requirement that a federal jury be unanimous is a

bedrock principle of our criminal jurisprudence.”

United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003))

(citing Richardson v. United States, 526 U.S. 813, 817

(1999)). The jury unanimity rule had been “accepted

as a vital right protected by the common law” since

the 14th Century when the States ratified the Sixth

Amendment in 1791. Ramos, 140 S. Ct. at 1395–96.

Ramos’s recognition that the jury unanimity rule

extends to the States is, therefore, watershed.

In sum, a verdict of guilt in the face of

dissenting jurors’ votes to acquit is literally

inaccurate because guilty verdicts, by definition, must

be unanimous. Ramos, 140 S. Ct. at 1397. With

Ramos, we now understand the government’s burden

in serious state criminal jury trials to be proof beyond

a reasonable doubt as to each element of the offense

as determined by all of the jurors. Thus, Ramos alters

our understanding of the bedrock procedural

elements of the Sixth Amendment’s unanimity rule,

which is central to ensuring that criminal trials are

conducted in a just manner and come to a just

conclusion.

B. Ramos Differs from Past New Rules

Concerning the Sixth Amendment Jury

Guarantee.

The rule announced in Ramos differs markedly

from previous cases where the Court found a new rule

of criminal procedure that implicated the jury

9

guarantee was not retroactive. In none of those cases

did we know that at least one juror had voted to

acquit, such that, by definition, there is an

“impermissibly large risk” of an inaccurate conviction.

Whorton, 549 U.S. at 418.

For example, in Summerlin, the Court

considered whether Ring v. Arizona, 536 U.S. 584

(2002), which held that a jury, not a judge, must make

the factual findings necessary to impose the death

penalty, should apply retroactively under Teague. A

closely divided Court held that Ring was not

retroactive because there was no evidence that

judicial sentencing seriously diminished the accuracy

of capital sentencing proceedings. Summerlin, 542

U.S. at 355-56. Summerlin relied on DeStefano v.

Woods, 392 U.S. 631 (1968) (per curiam), which held

that the Court’s decisions in Duncan v. Louisiana, 391

U.S. 145 (1968), and Bloom v. Illinois, 391 U.S. 194

(1968)—respectively establishing the right to jury

trial in all serious criminal cases and criminal

contempt proceedings—did not apply retroactively.

Summerlin explained that under DeStefano, “a trial

held entirely without a jury [is] not impermissibly

inaccurate . . .” Summerlin, 542 U.S. at 357.

The Court’s logic in Summerlin and DeStefano

does not apply in this case. The question whether a

jury trial is inherently more accurate than a bench

trial speaks to the reliability of one factfinding body

over another, which has historically been the subject

of some debate. See Summerlin, 542 U.S. at 356. This

case presents a different question: whether, once a

jury is selected and empaneled as the factfinding body

in a criminal trial, a non-unanimous jury verdict

10

undermines the accuracy of a resulting criminal

conviction. The answer is yes: a non-unanimous jury

verdict casts doubt on the sufficiency of the evidence

supporting a conviction and undermines the accuracy

of the conviction. Cf. Johnson, 406 U.S. at 401

(Marshall, J., dissenting) (observing that “there is all

the difference in the world between three jurors who

are not there, and three jurors who entertain doubts

after hearing all the evidence”); see also Johnson v.

Louisiana, 406 U.S. 380, 388 (1972) (Douglas, J.,

dissenting) (discussing how the “diminution of verdict

reliability flows from” a non-unanimous jury

verdict).3 A defendant convicted by a judge may well

have been convicted if tried by a jury. But a conviction

by a non-unanimous jury means that, when jurors

made their final decision about the defendant’s fate,

at least one juror had a reasonable doubt and voted to

acquit. Such a conviction therefore would not have

occurred had unanimity been required. See Ramos,

140 S. Ct. at 1394 (“So instead of the mistrial he would

have received almost anywhere else, Mr. Ramos was

sentenced to life in prison without the possibility of

parole.”). Thus, the accuracy of the defendant’s

conviction is “seriously diminished” by the fact that

not all jurors were convinced of the defendant’s guilt

beyond a reasonable doubt. Summerlin, 542 U.S. at

352 (emphasis and internal quotation marks

omitted).4

3 See also Reid Hastie, Steven D. Penrod & Nancy Pennington,

Inside the Jury 163 (e-dition, 1983) (noting that majority rule

juries typically end their deliberations not when they achieve

unanimity but when they attain the requisite quorum).

4 To be sure, in some cases, the dissenting jurors may have

changed their votes had unanimity been required and

11

For the same reason, Allen v. Hardy, 478 U.S.

255 (1986) (per curiam), is inapposite here. In Allen,

this Court held that Batson v. Kentucky, 476 U.S. 79

(1986), does not apply retroactively to cases pending

on federal collateral review. Justice Kavanaugh

suggested in his Ramos concurrence that Allen would

dictate a similar non-retroactivity ruling in this case.

Ramos, 140 S. Ct. at 1420 n.8 (Kavanaugh, J.,

concurring). But, with respect to Teague, a Ramos

violation is unique and requires retroactive

application even assuming the validity of Allen.

There is no disputing the “notable and

consequential” nature of this Court’s Batson’s

decision “recogniz[ing] the pervasive racial

discrimination woven into the traditional system of

unfettered peremptory challenges.” Ramos, 140 S. Ct.

at 1418 (Kavanaugh, J., concurring). Discrimination

in jury selection is one of the most serious injuries in

our constitutional system. Not only are “[d]efendants

. . . harmed . . . when racial discrimination in jury

selection compromises the right of trial by impartial

jury, but racial minorities are harmed more

generally,” and “the very integrity of the courts is

jeopardized . . . undermin[ing] public confidence in

adjudication.” Miller-El v. Dretke, 545 U.S. 231, 237–

38 (2005). By modifying the procedure for challenging

discriminatory peremptory strikes, Batson effected an

deliberations continued; in other cases, a unanimous jury may

have compromised on a lesser charge. But the presence of at

least one juror who had reasonable doubt and voted to acquit

means that, at a minimum, the likelihood that the defendant

would have been convicted of the same charge by a unanimous

jury is “seriously diminished.” Id.

12

important procedural shift to investigate instances of

jury discrimination more accurately. Batson also

recognized the fundamental principle that the racebased exclusion of a single juror violates the

Constitution and indeed undermines the rule of law.

Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019)

(“Under the Equal Protection Clause, the Court

stressed, even a single instance of race discrimination

against a prospective juror is impermissible”). Justice

Kavanaugh’s Ramos concurrence properly recognizes

these concerns. Ramos, 140 S. Ct. at 1418

(Kavanaugh, J., concurring).

The importance of Batson cannot be overstated,

and its impact on the accuracy of trial outcomes is

significant. “[W]here the prosecution uses its

peremptory challenges to cull black and Hispanic

jurors from the jury empaneled for the trial of a black

defendant, the threat to the accuracy of the trial is

significant and unacceptable.” Allen, 478 U.S. 255,

263–64 (1986) (Marshall, J., dissenting). Amicus

submits that Justice Marshall was correct to dissent

in Allen, and that Batson should have applied

retroactively.

Even accepting the validity of Allen, however,

its retroactivity analysis is inapt because a Ramos

violation is unique under Teague. When Batson is

violated, the impact on the outcome of any specific

verdict is “unknown and perhaps unknowable.” Allen,

478 U.S. at 263 (Marshall, J., dissenting); see, e.g.,

Peters v. Kiff, 407 U.S. 493, 503–04 (1972) (explaining

that the ultimate effect of removing from the jury

room qualities of human nature and varieties of

13

human experience is “unknown and perhaps

unknowable”). Considering the unknowable impact

on the fact-finding process from a Batson violation,

the Court in Allen concluded that Batson would have

only “some impact on truthfinding” but would not

have “such a fundamental impact on the integrity of

factfinding as to compel retroactive application.”

Allen, 478 U.S. at 259.

The effect of a Ramos violation is not “unknown

and [] unknowable.” Allen, 478 U.S. at 263 (Marshall,

J., dissenting). The opposite is true: it is verifiable

that a defendant convicted by a non-unanimous jury

likely would not have been convicted under Ramos’s

unanimity requirement. See Ramos, 140 S. Ct. at

1393 (“So instead of the mistrial he would have

received almost anywhere else, Mr. Ramos was

sentenced to life in prison without the possibility of

parole.”) (Gorsuch, J.). That is, we know it is likely

that a conviction by a divided jury pre-Ramos would

not have resulted in a conviction under Ramos.

When a jury deliberation resulted in a nonunanimous guilty verdict, the fact-finding process

was necessarily undermined, and the non-unanimous

jury verdict had “a fundamental impact on the

integrity of factfinding . . . .” Allen, 478 U.S. at 259.

Ramos therefore warrants retrospective application

under Teague.

14

II.

The Racist Design and Operation of

Louisiana’s and Oregon’s Non-unanimous

Jury

Rules

Support

Retroactive

Application of Ramos.

Beginning in 1898, Louisiana’s non-unanimous

jury rule “silenced and sidelined [Black jurors] in

criminal proceedings and caused questionable

convictions [for defendants] throughout Louisiana.”

State v. Gipson, No. 2019-KH-1815, at 2 (La. June 3,

2020) (Johnson, C.J., dissenting from denial of writ).

As this Court recognized in Ramos, Louisiana

implemented its non-unanimous jury provision “to

ensure that African-American juror service would be

meaningless,” and Oregon similarly implemented its

rule in an effort to “dilute the influence of racial,

ethnic, and religious minorities on Oregon juries.”

Ramos, 140 S. Ct. at 1343 (citation omitted). These

non-unanimous jury rules were designed to

undermine the accuracy of criminal convictions by

limiting juror deliberations and silencing the

perspectives and votes of Black jurors. And, until

rejected by Louisiana voters and this Court in Ramos,

Louisiana’s and Oregon’s non-unanimous jury

schemes functioned as intended.

A. Louisiana’s

Non-Unanimous

Jury

Provision Was Designed to Undermine

the Accuracy of Criminal Convictions.

Louisiana’s history of race-based juror

exclusion and nullification dates to the 1800s. After

Reconstruction ended and federal troops left the

South, Louisiana Democrats called a Constitutional

15

Convention in 1898.5 “[T]he sinister purpose of the

Convention was to create a racial architecture in

Louisiana that would circumvent the Reconstruction

Amendments and marginalize the political power of

black citizens.”6

During the period leading up to the

Convention, Black men were routinely convicted

when charged with a crime, regardless of the

evidence. As one local paper acknowledged, “‘in some

of the parishes of the State the hostility to the negro

is . . . such . . . that . . . juries in these benighted

localities seem to think that it is their bounden duty

to render a verdict of ‘guilty as charged,’ because the

accused has black skin.’”7 But there was widespread

fear among white Louisianans that if Black men

served on juries, Black defendants “would simply not

be convicted because of the African-American

presence in the jury box.”8 After the Fourteenth

Amendment was ratified, one popular newspaper

lamented that “if a negro be on trial for any crime, [a

Black juror] becomes at once his earnest champion,

and a hung jury is the usual result.”9

5 See Robert J. Smith & Bidish J. Sarma, How and Why Race

Continues to Influence the Administration of Criminal Justice in

Louisiana, 72 La. L. Rev. 361, 374–76 (2012).

6 Id. (citation omitted).

7 See Thomas Ward Frampton, The Jim Crow Jury, 71 Van. L.

Rev. 1593, 1636–37 (2018) (quoting Prejudiced Verdicts,

Opelousas Courier, Oct. 26, 1985, at 1).

8 Smith & Sarma, supra note 5, at 376 (citation omitted).

9 Id. at 375 (quoting Future of the Freedman, Daily Picayune,

Aug. 31, 1873, at 5).

16

It was at this 1898 Convention that Louisiana

adopted the State’s non-unanimous jury provision.10

The Convention’s official record is replete with

references to its racist goals. The Judiciary

Committee Chair, Judge Thomas Semmes, bluntly

declared that the purpose of the Convention was “to

establish the supremacy of the white race in this State

to the extent to which it could be legally and

constitutionally done . . . .”11 Convention delegates

sought to placate the “popular sentiment of th[e]

State,” which, as one delegate put it, was the desire

for “universal white manhood suffrage, and the

exclusion from the suffrage of every man with a trace

of African blood in his veins.”12 At the end of the

Convention, Convention President Kruttschnitt

marveled at its success, congratulating the delates for

drafting a constitution that would “perpetuate the

supremacy of the Anglo-Saxon race in Louisiana.”13

Consistent with their broader goal to

perpetuate white supremacy, delegates adopted a

non-unanimous jury provision designed both to

exclude Black jurors from any meaningful voice, and

to ensure that Black men would continue to be

10 The originally ratified provision first required that, for “cases

in which the punishment is necessarily at hard labor,” nine out

of twelve jurors must vote for guilt. La. Const. art. 116 (1898).

The provision was updated in 1974 to require that at least ten

jurors vote for guilt. See La. Const. art. I, § 17 (1974).

11 Official Journal of the Proceedings of the Constitutional

Convention of the State of Louisiana: Held in New Orleans,

Tuesday, February 8, 1898, at 375 (printed by H.J. Hearsey,

1898).

12 Id. at 380.

13 Id. at 381.

17

convicted

regardless

of

the

evidence.

B. Louisiana’s

Non-Unanimous

Jury

Provision Functioned as Intended.

Until it was abandoned in 2018, Louisiana’s

non-unanimous jury rule functioned as intended.14

Louisiana’s “longtime use of a law deliberately

designed to enable majority-White juries to ignore the

opinions and votes of Black jurors at trials of Black

defendants has . . . affected the fundamental fairness

of Louisiana’s criminal legal system.” Gipson, No.

2019-KH-1815, at 4. The discriminatory effects of

Louisiana’s non-unanimous jury provision are welldocumented.

In “The Jim Crow Jury,” Thomas Frampton

recently documented that, with respect to nonunanimous jury verdicts rendered by racially mixed

juries (11-1 or 10-2) between 2011 and 2017, a

disproportionate number of verdicts returned were

“guilty,” and only a small number were “not guilty.”15

Black jurors disproportionately cast not guilty votes

that were overridden by the guilty votes of the other

14 As Justice Alito highlights in his dissenting opinion in Ramos,

both Louisiana and Oregon ratified post-adoption amendments

to their non-unanimous jury provisions. See Ramos, 140 U.S. at

1425-40 (Alito, J., dissenting). But Louisiana’s and Oregon’s

amendments to their non-unanimous jury provisions did not

erase the racist history and design of the non-unanimous jury.

See United States v. Fordice, 505 U.S. 717, 729 (1992) (policies

that are “traceable” to a State’s de jure racial segregation and

that “still . . . have discriminatory effects” offend the Equal

Protection Clause). Nor, as discussed below, did they restore

accuracy to non-unanimous convictions.

15 Frampton, supra note 7, at 1636–37.

18

jurors.16 In other words, “black jurors found

themselves casting ‘empty votes’—that is, ‘not guilty’

votes overridden by the supermajority vote of the

other jurors . . . .”17 Louisiana’s non-unanimous jury

rule therefore continued to “inhibit inclusion” of

minority jurors in the deliberative process.18 “These

cases demonstrate that the non-unanimous-decision

rule operate[d] . . .just as it was intended to 120 years

ago—to dilute the influence of black jurors.”19 By

disproportionately muting the voices of AfricanAmerican jurors on racially mixed juries, Louisiana

further undercut the reliability and accuracy of nonunanimous guilty verdicts.

The quality of jury deliberation also suffered

under Louisiana’s non-unanimous jury regime.

Studies on racial diversity in decision-making and

jury deliberations show that on racially mixed juries,

“white as well as black jurors describe the facts of the

case more accurately and are more systematic about

going through the evidence.”20 “[U]nanimous juries

deliberate longer, discuss and debate the evidence

more thoroughly, reach more reliable conclusions . . .

16

Id. at 1637.

17 Id.

18 Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113

Harv. L. Rev. 1261, 1263 (2000).

supra note 7, at 1636; see also id. at 1637

(“[C]ompared to their white counterparts, black jurors were

about 2.5 times as likely to be casting ‘empty votes’ to acquit at

the close of deliberations.”) (citation omitted).

20 Emily Bazelon, Two Jurors Voted to Acquit. He Was Convicted

of Murder Anyway., N.Y. Times Magazine, Jan. 15, 2020 (citing

Samuel R. Sommers, On Racial Diversity and Group Decision

Making: Identifying Multiple Effects of Racial Composition on

Jury Deliberations, 90 J. Personality and Soc. Psych. 597 (2006)).

19Frampton,

19

and are more tolerant and respectful of dissenting

voices.”21 But when a jury was not required to reach

unanimity before reaching a verdict, jury

deliberations often halted “once a vote indicates that

the required majority has formed . . . .”22 Shorter

deliberations often lead to less accurate judgments:

non-unanimous juries “discourage[] painstaking

analyses of the evidence and steer[] jurors toward

swift judgments that too often are erroneous or at

least highly questionable.”23

And, just as it was intended to do when adopted

in 1898, Louisiana’s non-unanimous jury rule

continued to harm Black defendants well into the 21st

Century. Between 2011 and 2017, African American

defendants “were more likely to be convicted in cases

where at least one or two jurors harbored doubts.”24

In other words, African American defendants were

overrepresented in the pool of defendants who were

convicted non-unanimously; by contrast, white

defendants “were overrepresented

. . . among

unanimous convictions and underrepresented . . .

among nonunanimous convictions.”25 Thus, just as

the delegates at the 1898 Constitutional Convention

intended,

Louisiana’s

non-unanimous

juries

continued to over-empower white jurors while

disempowering Black jurors, to the detriment of Black

defendants. This evidence highlights how the

interaction between non-unanimous juries and race

continued to seriously diminish the accuracy of the

21 Smith & Sarma, supra note 5, at 378–79.

22 Taylor-Thompson, supra note 18, at 1272

23 Id. at 1273.

24 Frampton, supra note 7, at 1639.

25 Id.

20

factfinding process in Louisiana prior to 2018.

Whorton, 549 U.S. at 418.

Race must play no role in dispensing criminal

punishment because a “basic premise of our criminal

justice system” is that “[o]ur law punishes people for

what they do, not who they are.” Buck v. Davis, 137 S.

Ct. 759, 778 (2017). Yet, because of Louisiana’s nonunanimous jury law, Black defendants were more

likely to be convicted than their white counterparts.

This shows that the non-unanimous jury rule

seriously diminished the likelihood of an accurate

outcome, i.e., an outcome where race has no role in

whether a defendant is convicted.

The harms inflicted upon African Americans—

jurors and defendants alike—by Louisiana’s nonunanimous jury provision, persist. “Defendants

convicted by non-unanimous jury verdicts are

prisoners of a law that was designed to discriminate

against them and disproportionately silence African

American jurors.” Gipson, No. 2019-KH-1815, at 9.

The historical design and contemporary effect of

Louisiana’s non-unanimous jury rule are ongoing:

“Simply pledging to uphold the Constitution in future

criminal trials does not heal the wounds already

inflicted on Louisiana’s [Black] community by the use

of this law for 120 years.” Id. This Court should hold

Ramos’s unanimity requirement applies retroactively

to cases on federal collateral review.

21

CONCLUSION

LDF respectfully urges this Court to apply

Ramos retroactively to cases on federal collateral

review.

Respectfully submitted,

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL*

OMAVI SHUKUR

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

sspital@naacpldf.org

July 22, 2020

MAHOGANE D. REED

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW Suite 600

Washington, DC 20005

(202) 682-1300

mreed@naacpldf.org

*Counsel of Record

Counsel for Amicus Curiae

NAACP Legal Defense &

Educational Fund, Inc.