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 U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION,

ACLU FOUNDATION OF LOUISIANA,

AMERICAN CONSERVATIVE UNION FOUNDATION,

CATO INSTITUTE, R STREET INSTITUTE, AND THE

RUTHERFORD INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, DC 20005

CASSANDRA STUBBS

BRIAN W. STULL

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

201 W. Main Street, Ste. 402

Durham, NC 27707

LISA S. BLATT

Counsel of Record

AMY MASON SAHARIA

KATELYN ADAMS

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

(Additional Counsel on Inside Cover)

EZEKIEL EDWARDS

JENNESA CALVO-FRIEDMAN

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

BRUCE HAMILTON

ACLU FOUNDATION OF LOUISIANA

1340 Poydras Street, Ste. 2160

New Orleans, LA 70112

DAVID H. SAFAVIAN

AMERICAN CONSERVATIVE UNION & ACU FOUNDATION

199 North Fairfax Street, Ste. 500

Alexandria, VA 22314

CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

100 Massachusetts Ave., N.W.

Washington, DC 20001

ARTHUR RIZER

R STREET INSTITUTE

1212 New York Ave., N.W., Ste. 900

Washington, DC 20005

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................................. 1

SUMMARY OF ARGUMENT .................................................... 3

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

I. THE RIGHT TO A VERDICT BY A UNANIMOUS

JURY IS NOT NEW............................................................... 7

A. Ramos Reaffirmed Longstanding Precedent .............. 7

B. Apodaca Does Not Trigger Legitimate Reliance

Interests ........................................................................... 9

C. Gideon v. Wainwright Supports Application of

Ramos Retroactively ..................................................... 11

II. IN THE ALTERNATIVE, THE RIGHT TO A

VERDICT BY A UNANIMOUS JURY IS A

WATERSHED RULE OF CRIMINAL

PROCEDURE ....................................................................... 13

A. The Historical Origins of the Right Confirm Its

Critical Role in Protecting Against Inaccurate

Verdicts ........................................................................... 14

B. This Court Has Repeatedly Recognized That the

Rule Protects Against Inaccurate Verdicts ................ 18

C. Modern Experience Confirms That Unanimous

Juries Reach More Accurate Results .......................... 22

D. The Origins of the Nonunanimous-Jury Rule in

Louisiana and Oregon Confirm That It Diminishes

Accuracy ......................................................................... 25

CONCLUSION ............................................................................ 27

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

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

Betts v. Brady, 316 U.S. 455 (1942) ................................ 6, 9, 12

Brown v. Louisiana, 447 U.S. 323 (1980) ....................... 19, 20

Burch v. Louisiana, 441 U.S. 130 (1979) ........................ 19, 20

State v. Bybee, 17 Kan. 462 (1877) .......................................... 17

Duncan v. Louisiana, 391 U.S. 145 (1968) ................. 8, 13, 18

Ford v. Maryland, 12 Md. 514 (1859) .................................... 17

Gideon v. Wainwright, 372 U.S. 335 (1963)................. passim

Louisiana v. Gipson,

2019-KH-01815 (La. 6/3/2020);

2020 WL 3427193 ......................................................... 13, 25

Hankerson v. North Carolina,

432 U.S. 233 (1977) ............................................................ 21

Ivan v. City of New York, 407 U.S. 203 (1972) ..................... 21

State v. Ivanhoe, 35 Or. 150 (1899) ........................................ 17

Johnson v. Louisiana, 406 U.S. 356 (1972) ............... 9, 14, 19

United States v. Lawrence,

26 F. Cas. 886 (C.C.D.C. 1835) ......................................... 17

United States v. Louisiana,

225 F. Supp. 353 (E.D. La. 1963) ..................................... 10

Mackey v. United States, 401 U.S. 667 (1971) ...................... 11

Malloy v. Hogan, 378 U.S. 1 (1964) ......................................... 8

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................................ 10

Patton v. United States, 281 U.S. 276 (1930) ....................... 18

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

Rauf v. State, 145 A.3d 430 (Del. 2016) ................................ 18

Schriro v. Summerlin, 542 U.S. 348 (2004) .......................... 13

Strauder v. West Virginia, 100 U.S. 303 (1880) ................... 19

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

Timbs v. Indiana, 139 S. Ct. 682 (2019) .................................. 8

Victor v. Nebraska, 511 U.S. 1 (1994) .................................... 15

Whorton v. Bockting, 549 U.S. 406 (2007) .................. 7, 12, 13

Williams v. Florida, 399 U.S. 78 (1970) ................................ 19

III

Page

Cases—continued:

In re Winship, 397 U.S. 358 (1970) .................................. 14, 21

Work v. State, 2 Ohio St. 296 (1853) ....................................... 17

Constitution:

U.S. Const. amd. VI ........................................................ passim

U.S. Const. amd. XIV ..................................................... passim

Miscellaneous:

Jeffrey B. Abramson, We, The Jury: The Jury

System and the Ideal of Democracy (1994) ................... 23

John Adams, A Defence of the Constitutions

of Government of the United States

(3d ed. 1797) ........................................................................ 15

American Bar Ass’n, Principles for Juries

and Jury Trials (2005) ..................................................... 22

Jennifer H. Berman, Padilla v. Kentucky:

Overcoming Teague’s “Watershed”

Exception to Non-Retroactivity,

15 U. Pa. J. Const. L. 667 (2012) ...................................... 12

4 William Blackstone, Commentaries on the

Laws of England (1769) .................................................... 14

J.H. Davis, et al., The Decision processes of 6and 12- person mock juries assigned

unanimous and two-thirds majority rules,

J. Personality & Soc. Psychol. 1 (1975)........................... 22

Dennis J. Devine, et al., Jury Decision

Making: 45 Years of Empirical Research

on Deliberating Groups,

7 Psychol. Pub. Pol’y & L. 622 (2001) ....................... 22, 24

Shari Seidman Diamond, et al., Revisiting the

Unanimity Requirement: The Behavior of

the Non-Unanimous Civil Jury,

100 Nw. U.L. Rev. 201 (2006) ........................................... 23

1 William Forsyth, History of Trial by Jury

(1852) ................................................................................... 16

IV

Page

Miscellaneous—continued:

R.D. Foss, Structural effects in simulated

jury decision making, 40 J. Personality

& Soc. Psychol. 1055 (1981). ............................................. 23

John Guinther, The Jury in America (1988)........................ 24

Valerie P. Hans, Deliberation and Dissent:

12 Angry Men Versus the Empirical

Reality of Juries,

82 Chi.-Kent L. Rev. 579 (2007) ....................................... 24

Valerie P. Hans, The Power of Twelve: The

Impact of Jury Size and Unanimity on

Civil Jury Decision Making,

4 Del. L. Rev. 1 (2001) ....................................................... 23

Robert J. MacCoun & Tom R. Tyler, The

Basis of Citizen’s Perceptions of the

Criminal Jury: Procedural Fairness,

Accuracy, and Efficiency,

12 L. & Hum. Behav. 333 (1988) ..................................... 24

Daniel D. Peck, The Unanimous Jury

Verdict: Its Valediction in Some Criminal

Cases, 4 Tex. Tech L. Rev. 185 (1972) ............................. 14

3 Joseph Story, Commentaries on the

Constitution of the United States (1833)........................ 15

2 James Wilson, Works of the Honourable

James Wilson (Lorenzo Press 1804) ........................ 15, 16

In the Supreme Court of the United States

No. 19-5807

THEDRICK EDWARDS, PETITIONER,

v.

DARREL VANNOY, WARDEN, RESPONDENT.

ON WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION,

ACLU FOUNDATION OF LOUISIANA,

AMERICAN CONSERVATIVE UNION FOUNDATION,

CATO INSTITUTE, R STREET INSTITUTE, AND THE

RUTHERFORD INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with

Amici affirm that no counsel for any party authored this brief in

whole or in part and that no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief.

No person other than amici, their members, or their counsel made a

monetary contribution to its preparation or submission. Petitioner

and respondent filed blanket consents to amicus briefs with the Clerk

of Court.

1

(1)

2

approximately two million members dedicated to the principles of liberty and equality embodied in the

Constitution. The ACLU Foundation of Louisiana is one

of its statewide affiliates.

The American Conservative Union Foundation

(ACUF) is a 501(c)(3) organization based in Alexandria,

Virginia. Established in 1983, ACUF is dedicated to educating Americans about conservative beliefs and policies

at all levels of government. Its Nolan Center for Justice

works to reform America’s criminal justice system to improve public safety, foster greater government

accountability, and advance human dignity. It is the organization’s view that Constitutional injuries require a

meaningful remedy. They cannot be ignored for the sake

of convenience, particularly when the end result is the

deprivation of life or liberty. In this case, that means that

those who stand convicted by nonunanimous verdicts

should be entitled to a remedy, whether their case is on

direct or collateral review.

The Cato Institute is a non-partisan public-policy research foundation established in 1977 and dedicated to

advancing the principles of individual liberty, free markets, and limited government. The Cato Institute’s

Project on Criminal Justice was founded in 1999 and focuses on the scope of substantive criminal liability, the

proper and effective role of police in their communities,

the protection of constitutional and statutory safeguards

for criminal suspects and defendants, citizen participation

in the criminal justice system, and accountability for law

enforcement officers.

The R Street Institute is a non-profit, non-partisan

public policy research organization. R Street’s mission is

to engage in policy research and educational outreach that

promotes free markets, as well as limited yet effective

3

government, including properly calibrated legal and regulatory frameworks that support economic growth. The

R Street Institute is interested in this case because of the

significant constitutional issues and fundamental issue of

fairness and accuracy implicated by the Sixth Amendment’s requirement that criminal jury verdicts be

unanimous.

The Rutherford Institute is an international civil liberties organization with its headquarters in

Charlottesville, Virginia. Its President, John W. Whitehead, founded the Institute in 1982. The Institute

specializes in providing legal representation without

charge to individuals whose civil liberties are threatened

or violated and in educating the public about constitutional and human rights issues.

Amici ACLU, ACLU Foundation of Louisiana, and

The Rutherford Institute filed amicus briefs in support of

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

in which they urged this Court to reaffirm that the Sixth

Amendment, as applied to the States through the Fourteenth Amendment, guarantees defendants the right to a

unanimous jury verdict. Amici respectfully submit this

brief to assist the Court in resolving whether to apply the

Court’s holding in Ramos retroactively to cases on federal

collateral review.

SUMMARY OF ARGUMENT

This Court has reserved retroactive application of

rules of criminal procedure for the most exceptional of

cases. Gideon v. Wainwright, 372 U.S. 335 (1963), which

recognized the right to appointed counsel, was one such

exceptional case. This is another. The unanimous jury

verdict is a fundamental feature of the Sixth Amendment.

4

Since our Nation’s founding, it has protected criminal defendants from inaccurate verdicts that result from biased

juries and overzealous prosecutors. It should apply to

cases on collateral review, both because Ramos merely

reaffirms an existing rule of criminal procedure and because the rule, even if new, is a watershed rule of criminal

procedure.

I. In the first instance, the rule articulated in Ramos

should apply to cases on collateral review because the

right to a unanimous jury is not new. As it observed in

Ramos, this Court has recognized for more than a century

that the Sixth Amendment guarantees defendants a unanimous jury. And the Court made clear half a century ago

that the Sixth Amendment applies to the States through

the Fourteenth Amendment. As a result, criminal defendants in Louisiana and Oregon have long had the right to

unanimous jury verdicts. This Court’s outlier decision in

Apodaca v. Oregon, 406 U.S. 404 (1972)—like the precedent overruled in Gideon—should not alter the

retroactive availability of a right that has existed for more

than a century. Given Apodaca’s fractured nature and demonstrably incorrect departure from precedent, it should

not give rise to the kind of reliance interests that motivate

the retroactivity doctrine, particularly in light of the racist

origins of the state laws at issue here.

II. Alternatively, even if this Court concludes that Ramos announced a new rule, the right to a unanimous jury

is a watershed rule of criminal procedure entitled to retroactive application. It is as essential to accurate verdicts

as the right to counsel, which this Court held in Gideon

must be applied retroactively. Nonunanimous-jury rules

seriously diminish the accuracy of jury verdicts. Commentators and courts have lauded the truth-seeking

function of the unanimous-jury rule since its origins in

5

England. Our Nation’s Framers recognized the unanimous jury as a bulwark against verdicts tainted by biases.

So too, this Court has repeatedly recognized that full and

equal participation by all jurors is essential to the reliability of verdicts and that unanimous juries further that

interest. The right to a unanimous jury thus operates

hand in hand with the “beyond a reasonable doubt” burden of proof—which this Court applied retroactively on

direct review under the framework that predated Teague

v. Lane, 489 U.S. 288 (1989)—to ensure that juries reach

trustworthy verdicts.

Modern experience confirms these observations. Research shows that unanimous-rule juries tend to

deliberate longer; ensure that each individual juror has a

voice in deliberations; more often correct factual errors

during deliberations; engage more frequently in evidencedriven (as opposed to result-oriented) deliberations; and

tend to be more confident in their results. Modern experience also demonstrates, in stark detail, the pernicious

effects of nonunanimous decision-making by juries. In

Louisiana, Black defendants are 64 percent more likely

than white defendants to be convicted by nonunanimous

juries. Louisiana’s rule has operated to marginalize Black

jurors and to convict Black defendants, exactly as it was

intended to do. The likelihood that falsely convicted defendants are languishing in Louisiana and Oregon prisons

as a result of these States’ rules is too serious to ignore.

The Court should recognize the jury-unanimity rule as

a bedrock rule of criminal procedure entitled to retroactive application.

6

ARGUMENT

The quintessential case for retroactive application of a

rule of criminal procedure is Gideon v. Wainwright, 372

U.S. 335 (1963), which extended to the States the Sixth

Amendment right to appointed counsel in a case on collateral review. While Gideon was decided well before

Teague, the Court has since noted that it would apply retroactively under that doctrine if decided today. And for

similar reasons, the right to a unanimous jury ought to apply retroactively as well. Since our Nation’s founding, the

unanimous-jury right has operated, in parallel with the requirement to find guilt beyond a reasonable doubt, to

ensure accurate verdicts and protect defendants against

overzealous prosecutors and biased jurors. The unanimous-jury right is, and always has been, a core protection

for criminal defendants. Defendants in Louisiana and Oregon were wrongly deprived of this right, and they

deserve relief.

This case is of a piece with Gideon. As in Gideon,

which overruled Betts v. Brady, 316 U.S. 455 (1942), as an

outlier precedent, Ramos restored the right to a unanimous jury to its rightful place among the fundamental

constitutional protections for criminal defendants. Because Ramos, like Gideon, did not so much recognize a

new rule as reaffirm an existing one, the rule requiring a

unanimous jury should apply to cases on collateral review.

But even if this Court concludes that the rule is new, it is,

again like Gideon, a watershed rule, critical to ensuring

that juries reach accurate and fair verdicts. Under this

Court’s retroactivity framework, then, it should apply in

cases on collateral review.

7

I.

THE RIGHT TO A VERDICT BY A UNANIMOUS JURY

IS NOT NEW

Under this Court’s retroactivity framework, a new

rule of criminal procedure does not apply to cases on collateral review unless it is a watershed rule. See Teague,

489 U.S. at 301 (new rules are those not “dictated by precedent existing at the time the defendant’s conviction

became final”); see also Whorton v. Bockting, 549 U.S.

406, 416 (2007) (“[A]n old rule applies both on direct and

collateral review.”). This Court in Ramos did not so much

announce a new rule as reaffirm that the unanimity requirement of the Sixth Amendment, recognized by this

Court in more than a century of precedent, is fully incorporated against the States by the Fourteenth

Amendment. Accordingly, the holding of Ramos should

apply to cases on collateral review.

A. Ramos Reaffirmed Longstanding Precedent

The Sixth Amendment has always required unanimity

in jury verdicts. As this Court observed in Ramos, “at the

time of the [Sixth] Amendment’s adoption, the right to a

jury trial meant a trial in which the jury renders a unanimous verdict.” Ramos, 140 S. Ct. at 1400. This Court has

reiterated this unanimity requirement at least “13 times

over 120 years,” id. at 1399, most recently in Ramos itself.

Importantly, this Court’s articulation in Ramos of the

Sixth Amendment right to a unanimous jury is not “a case

where the original public meaning was lost to time and

only recently recovered.” Id. at 1396. To the contrary,

the Ramos majority highlighted this Court’s enduring

and consistent recognition that the Sixth Amendment requires a unanimous jury verdict. Id. at 1393-97; see also

id. at 1421 (Thomas, J. concurring) (acknowledging “the

8

Court’s longstanding view that the Sixth Amendment includes a protection against nonunanimous felony guilty

verdicts”).

As the Court also explained in Ramos, the Court has

also long recognized, since at least 1968, that the Sixth

Amendment jury trial right is “‘fundamental to the American scheme of justice’ and incorporated against the

States under the Fourteenth Amendment.” Id. at 1397

(quoting Duncan v. Louisiana, 391 U.S. 145, 148-50

(1968)). And as early as 1964, the Court held that “incorporated provisions of the Bill of Rights bear the same

content when asserted against States as they do when asserted against the federal government.” 140 S. Ct. at 1397

(citing Malloy v. Hogan, 378 U.S. 1, 10-11 (1964)); see also

Malloy, 378 U.S. at 10-11 (“The Court thus has rejected

the notion that the Fourteenth Amendment applies to the

States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.” (internal

quotation marks and citation omitted)); Timbs v. Indiana,

139 S. Ct. 682 (2019) (unanimously rejecting arguments

for dual-track incorporation).

As a result, the right affirmed anew in Ramos is really

not new at all. Ramos simply reaffirms two longstanding

strands of this Court’s cases: those recognizing that the

Sixth Amendment requires a unanimous jury and those

incorporating the Sixth Amendment against the States

under the Fourteenth Amendment. The unanimity requirement of the Sixth Amendment was fully

incorporated against the States for more than 50 years before Ramos.

9

B. Apodaca Does Not Trigger Legitimate Reliance

Interests

A single outlier decision blemishes this Court’s

longstanding recognition of the jury-unanimity right articulated in Ramos: Apodaca v. Oregon, 406 U.S. 404

(1972). Apodaca should not alter the conclusion that Ramos merely reaffirmed an existing rule. Just as Gideon

did not create a new rule but simply recognized that Betts

v. Brady was an outlier, Ramos simply recognized Apodaca’s erroneous departure from what the Constitution

demanded.

As this Court emphasized in Ramos, Apodaca was a

“gravely mistaken,” “egregiously wrong,” “outlier” opinion contradicting other, controlling Supreme Court

precedent. Ramos, 140 S. Ct. at 1405; id. at 1416 (Kavanaugh, J., concurring in part); id. at 1409 (Sotomayor,

J., concurring in part) (“Apodaca is a universe of one—

uniquely irreconcilable with not just one, but two, strands

of constitutional precedent well established both before

and after the decision”). And the Court’s decision in Apodaca was badly fractured; no reasoning united a majority

of Justices. See id. at 1398-99.2 As the Ramos plurality

explained: “Apodaca’s judgment line resolved that case

for the parties in that case. It is binding in that sense. But

stripped from any reasoning, its judgment alone cannot

be read to repudiate this Court’s repeated pre-existing

teachings on the Sixth and Fourteenth Amendments.” Id.

Moreover, eight Justices of the Apodaca Court agreed that the Sixth

Amendment “requires a unanimous verdict in federal criminal jury

trials,” Johnson v. Louisiana, 406 U.S. 356, 395 (1972) (Brennan, J.,

dissenting), and a majority also agreed that the Sixth Amendment

should “be enforced against the States according to the same standards that protect that right against federal encroachment.” Id.; see

also Ramos, 140 S. Ct. at 1409 (Sotomayor, J., concurring).

2

10

at 1404 (plurality op.) (emphasis added); see also McDonald v. City of Chicago, 561 U.S. 742, 766 n.14 (2010)

(describing Apodaca as “the result of an unusual division

among the Justices” that “does not undermine the wellestablished rule that incorporated Bill of Rights protections apply identically to the States and the Federal

Government”). Thus, Apodaca should give not rise to the

kind of reliance interests that undergird Teague.

The practice of the States in the wake of Apodaca confirms the point. Nonunanimous verdicts have not

“become part of our national culture.” 140 S. Ct. at 1406

(majority op.) (internal quotation marks omitted). On the

contrary, unanimous verdicts are required in 48 States

and federal court. Id. The practice of Louisiana and Oregon was an outlier at the time of Apodaca, and remains

an outlier today. Given the long pedigree of the unanimous jury right, and Apodaca’s fractured nature and

tenuous reasoning, these States had every reason not to

rely on Apodaca.

Finally, the origins of Louisiana’s and Oregon’s nonunanimous-verdict rules further militate against reliance

on Apodaca. Each State adopted its nonunanimous-verdict rule for racially discriminatory reasons. Ramos, 140

S. Ct. at 1401. As relevant in this case, the purpose behind

Louisiana’s adoption of nonunanimous-jury verdicts was,

as admitted by a committee chairman at its 1898 constitutional convention, “to establish the supremacy of the white

race.” United States v. Louisiana, 225 F. Supp. 353, 371

(E.D. La. 1963) (quoting Official Journal of the Constitutional Convention of the State of Louisiana, 374 (Feb. 8,

1898)), aff’d, 380 U.S. 145 (1965); see also Ramos, 140 S.

Ct. at 1394 (recounting racist origins of Oregon law).

Louisiana and Oregon’s calculated efforts to evade a

constitutional guarantee for the purpose of excluding

11

Black jurors from meaningful participation in rendering

criminal verdicts violated the constitutional rights of

criminal defendants in both states. The origins of the laws

at issue—which were never intended to “faithfully apply”

federal law, Teague, 489 U.S. at 310 (internal quotation

marks omitted)—obliterated any legitimate claim of reliance interests by Louisiana and Oregon.

Stated

otherwise, when a State purposefully enacts an abhorrent,

racially discriminatory, and unconstitutional rule of criminal procedure, it bears the risk that, whenever this Court

eventually strikes the unconstitutional rule, that relief will

be provided retroactively.

C. Gideon v. Wainwright Supports Application of

Ramos Retroactively

The circumstances of this case bear a striking resemblance to Gideon v. Wainwright. Although Gideon

arose before this Court’s modern retroactivity jurisprudence, it has long been recognized as the quintessential

case for retroactive application of a rule of criminal procedure. In his opinion concurring in part and dissenting in

part in Mackey v. United States, 401 U.S. 667 (1971)—

which heavily influenced this Court’s current retroactivity

framework—Justice Harlan wrote:

[I]n some situations it might be that time and

growth in social capacity, as well as judicial perceptions of what we can rightly demand of the

adjudicatory process, will properly alter our understanding of the bedrock procedural elements

that must be found to vitiate the fairness of a particular conviction.

Id. at 693-94. He identified the right to counsel articulated in Gideon as one such example and reserved the

possibility of other “possible exceptions.” Id. at 694. This

12

Court has confirmed Gideon’s bedrock status. See Whorton, 549 U.S. at 419; see also Jennifer H. Berman, Padilla

v. Kentucky: Overcoming Teague’s “Watershed” Exception to Non-Retroactivity, 15 U. Pa. J. Const. L. 667, 685

(2012).

In Gideon, the Court recognized the Sixth Amendment right to appointment of counsel and applied it in a

state-court case in a collateral-relief posture. The Court

described a long line of cases holding the right to counsel

to be fundamental, and explained that the Court “made an

abrupt break with its own well-considered precedents”

when it took the opposite position twenty-one years earlier in Betts. Gideon, 372 U.S. at 344. The Gideon Court

described Betts as an “an anachronism when handed

down.” Id. at 345. Overruling Betts, the Court in Gideon

described its decision as a “return[] to these old precedents, sounder [it] believe[d] than the new.” Id. at 344.

As relevant here, the contrary precedent in Betts thus did

not prevent retroactive application of the right to counsel

reaffirmed in Gideon.

Gideon supports retroactive application of the juryunanimity rule, either because the rule is not new or because the rule is a watershed rule of criminal procedure,

see Part II, infra. Like Betts, Apodaca, when issued, was

an “anachronism,” and an “abrupt break” with the Court’s

well-established precedents. See Ramos, 140 S. Ct. at

1405. As in Gideon, the “gravely mistaken” Apodaca decision, id., should not preclude retroactive application of

the fundamental, ancient right to a trial by jury to those

individuals in Louisiana and Oregon whose convictions

were obtained by a less-than-unanimous jury.

13

II. IN THE ALTERNATIVE, THE RIGHT TO A VERDICT

BY A UNANIMOUS JURY IS A WATERSHED RULE OF

CRIMINAL PROCEDURE

Even if the right to a unanimous jury verdict were

deemed new, it would be a watershed rule. Cf. Whorton,

549 U.S. at 419 (recognizing that the right to appointed

counsel recognized in Gideon is a watershed rule of criminal procedure). Teague requires retroactive application

of a new “watershed” rule of criminal procedure that “implicate[s] the fundamental fairness” of the criminal

proceeding. 489 U.S. at 311-12. Such procedures are ones

“without which the likelihood of an accurate conviction is

seriously diminished.” Id. at 313. To be sure, this is a demanding standard. The question is not merely whether

the procedure at issue is “fundamental to our system of

criminal procedure” or is thought to make verdicts more

accurate. Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

Rather, the question is whether the absence of the procedure “so seriously diminishe[s] accuracy that there is an

impermissibly large risk of punishing conduct the law

does not reach.” Id. at 355-56 (alteration in original) (emphasis and internal quotation marks omitted).

The right to a unanimous jury is the exceptional rule

that satisfies that standard.3 The Sixth Amendment right

to a jury trial is not just “fundamental to the American

scheme of justice.” Ramos, 140 S. Ct. at 1397 (citing Duncan, 391 U.S. at 148-50). It is a central feature of the legal

apparatus designed to ensure that no one is convicted erroneously, as essential to that goal as the “beyond a

The Chief Justice of the Louisiana Supreme Court agrees. See Order at 2, Louisiana v. Gipson, 2019-KH-01815 (La. 6/3/2020); 2020

WL 3427193, at *2 (separate opinion of Johnson, C.J.) (Ramos

“plainly announced a watershed rule”).

3

14

reasonable doubt” standard—a standard that this Court

held, applying the pre-Teague framework, is essential to

the accuracy of jury verdicts. The Constitution strives to

produce accurate verdicts by requiring an extraordinary

degree of certainty. That is why a jury must find guilt

“beyond a reasonable doubt.” In re Winship, 397 U.S.

358, 361 (1970). And it is why the doubt of a single juror

defeats conviction. See Johnson v. Louisiana, 406 U.S.

380, 391-92 (1972) (Douglas, J., dissenting) (A “unanimous

jury is necessary if the great barricade known as proof

beyond a reasonable doubt is to be maintained. . . . [O]ne

is necessary for a proper effectuation of the other.”), overruled by Ramos, 140 S. Ct. 1390. The unanimity

requirement is a core feature of the jury-trial right, with

the purpose and effect of increasing the accuracy of jury

verdicts. Its centrality to the accuracy of jury verdicts requires its protection on collateral review.

A. The Historical Origins of the Right Confirm Its

Critical Role in Protecting Against Inaccurate

Verdicts

The modern jury-unanimity requirement originated in

England. Brief for the ACLU as Amicus Curiae, p. 3, Ramos v. Louisiana, 140 S. Ct. 1390 (2020). In his venerable

commentaries, Blackstone wrote that no person could be

found guilty of a serious crime unless “the truth of every

accusation . . . should . . . be confirmed by the unanimous

suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion.” 4 William

Blackstone, Commentaries on the Laws of England 343

(1769); see also Daniel D. Peck, The Unanimous Jury

Verdict: Its Valediction in Some Criminal Cases, 4 Tex.

Tech L. Rev. 185, 187 (1972) (examining origins of the unanimity requirement in England and writing that

“[v]erdicts were thought to be more reliable if there were

15

a number of compurgators and a great quantum of evidence and thus only a unanimous verdict was considered

trustworthy”).

The Framers of the United States Constitution, who

carried forward the unanimity requirement from the

English tradition, recognized that jury unanimity was a

critical protection against unjust and inaccurate convictions. Before the ratification of the Constitution in 1786,

John Adams wrote, “[I]t is the unanimity of the jury that

preserves the rights of mankind.” John Adams, A Defence of the Constitutions of Government of the United

States 376 (3d ed. 1797); see also 3 Joseph Story, Commentaries on the Constitution of the United States § 777

(1833) (“unanimity in the verdict of the jury is indispensable”).

While the Bill of Rights was being ratified, Justice

James Wilson—“who was instrumental in framing the

Constitution and who served as one of the original Members of this Court,” Victor v. Nebraska, 511 U.S. 1, 10

(1994)—highlighted in his oft-cited lectures the complementary roles of the unanimity requirement and the

requirement to find guilt beyond a reasonable doubt: “To

the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable

necessity.” 2 James Wilson, Works of the Honourable

James Wilson 350 (Lorenzo Press 1804); see also id. at

306, 311, 342, 351, 360 (further noting the unanimity requirement).

Justice Wilson emphasized that the unanimity requirement was instrumental in protecting criminal

defendants against verdicts tainted by bias:

The greatest security [against biased verdicts] is

provided by declaring, and by reducing to practice

16

the declaration, that he shall not suffer, unless the

selected body who act for his country say unanimously and without hesitation—he deserves to

suffer. By this practice, the party accused will be

effectually protected from the concealed and poisoned darts of private malice and malignity, and

can never suffer but by the voice of his country.

Id. at 351 (emphases added).

Nineteenth-century commentators and courts reaffirmed that unanimous jury requirements ensured more

accurate and reasoned decisionmaking, and tied the requirement to the burden of proof required to affirm a

conviction. The Scottish lawyer William Forsyth opined

that “to require that twelve men should be unanimous was

simply to fix the amount of evidence which the law deemed

to be conclusive of a matter in dispute.” 1 William Forsyth, History of Trial by Jury 239 (1852). Similarly,

Forsyth described the unanimity requirement as “furnish[ing] a safeguard against precipitancy, and ensur[ing]

a full and adequate discussion of every question which can

fairly admit of doubt.” Id. at 247. The requirement of

unanimity, he explained, carries with it the advantage that

“[i]n the event of any difference of opinion it secures a discussion. It is not possible to poll the jury at once, and so

without further trouble or consideration to come to the

conclusion. Any one dissentient person can compel the

other eleven fully and calmly to reconsider their opinions.” Id. at 251.

Early courts explained that the purpose of the jury

trial right was to protect innocent persons from conviction.

Discussing the jury trial right and the unanimity requirement in particular, the Supreme Court of Kansas

17

proclaimed that the “unanimous conclusion of twelve different minds, is the certainty of fact sought in the law,”

State v. Bybee, 17 Kan. 462, 467 (1877), noting that “the

testimony of each individual juror should be led to the

same conclusion.” Id. (emphasis added). The Supreme

Court of Ohio, discussing the unanimity requirement,

likewise opined: “We are of opinion it was this very tribunal, thus constituted, that those who framed and adopted

the constitution of this state intended to perpetuate and

make the safeguard of innocence, by securing its benefits

to every person accused of crime in any of its courts.”

Work v. State, 2 Ohio St. 296, 305 (1853) (emphasis added);

see also Ford v. Maryland, 12 Md. 514 (1859) (“unanimity

is indispensable to the sufficiency of a verdict” (emphasis

omitted)).

The U.S. Court of Appeals for the D.C. Circuit similarly affirmed that a “unanimous verdict is, alone,

competent to determine the fact in issue.” United States

v. Lawrence, 26 F. Cas. 886, 886 (C.C.D.C. 1835). Even

the Supreme Court of Oregon, before Oregon’s adoption

of its nonunanimous-verdict rule, recognized that the

“unanimous conclusion of twelve different minds is the

certainty of fact sought in the law,” State v. Ivanhoe, 35

Or. 150, 160 (1899) (emphasis added), further opining that

“safe and just results” at trial can only be obtained “by

deliberation, mutual concessions, and due deference . . . in

a body where unanimity is required.” Id. at 152.

Modern state courts have reaffirmed these principles.

Discussing accuracy in capital convictions, the Delaware

Supreme Court observed:

From the inception of our Republic, the unanimity

requirement and the beyond a reasonable doubt

standard have been integral to the jury’s role in ensuring that no defendant should suffer death

18

unless a cross section of the community unanimously determines that should be the case, under

a standard that requires them to have a high degree of confidence that execution is the just result.

Rauf v. State, 145 A.3d 430, 437 (Del. 2016) (per curiam).

As that court observed, the unanimity requirement is inextricably interrelated to the requirement that guilt be

proved “beyond a reasonable doubt.” The two work hand

in hand to ensure confidence in the accuracy of convictions.

B. This Court Has Repeatedly Recognized That the

Rule Protects Against Inaccurate Verdicts

This Court’s decisions confirm the crucial role of the

unanimity requirement in producing accurate verdicts.

As a general matter, the purpose of trial by jury, as noted

in Duncan v. Louisiana, is to provide a “safeguard

against the corrupt or overzealous prosecutor and against

the compliant, biased, or eccentric judge.” 391 U.S. at 156.

“Our conclusion,” the Court explained, “is that in the

American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a

fundamental right, essential for preventing miscarriages

of justice and for assuring that fair trials are provided

for all defendants.” Id. at 157-58 (emphasis added). And

this Court has acknowledged that the unanimity requirement is a “substantial and essential” feature of the jurytrial right. Patton v. United States, 281 U.S. 276, 290

(1930) (internal quotation marks omitted).

Nonunanimous decision-making is substantially likely

to produce unreliable, biased verdicts. Decisionmaking

by a less-than-unanimous jury was designed to exclude

the voices of minority jurors, and has had that effect. The

right to a unanimous jury thus provides an essential defense against biases that may infect a jury’s decision when

19

minority voices are not present. See Strauder v. West Virginia, 100 U.S. 303, 309 (1880) (“[P]rejudices often exist

against particular classes in the community, which sway

the judgment of jurors, and which, therefore, operate in

some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.”); see also

Johnson, 406 U.S. at 399 (Stewart, J., dissenting) (“The

requirement that the verdict of the jury be unanimous . . .

provides the simple and effective method endorsed by

centuries of experience and history to combat the injuries

to the fair administration of justice that can be inflicted by

community passion and prejudice.”).

In a series of cases involving jury size and unanimity,

the Court again reiterated that jury unanimity is critical

to unbiased, reasoned, and accurate verdicts. In Williams

v. Florida, 399 U.S. 78 (1970), the Court considered

whether the Sixth Amendment, incorporated through the

Fourteenth Amendment, permitted Florida to use a sixperson jury. Id. at 86.

The Court concluded that Florida could use a six-person jury, but it tied its reasoning to the unanimity

requirement. It explained: there is “little reason to think

that [the purposes of the jury requirement] are in any

meaningful sense less likely to be achieved when the jury

numbers six, than when it numbers 12—particularly if

the requirement of unanimity is retained.” Id. (emphasis

added). Drawing on this observation, the Court later held

in Burch v. Louisiana, 441 U.S. 130 (1979), that six-person juries must be unanimous. See id. at 139.

The Court reiterated this point in Brown v. Louisiana, 447 U.S. 323 (1980), decided under the Court’s prior

retroactivity framework. Brown presented the question

whether to apply the Court’s decision in Burch requiring

20

unanimity in six-person juries to other cases on direct review. Applying the pre-Teague framework, which focused

on whether “the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that

substantially impairs its truth-finding function and so

raises serious questions about the accuracy of guilty verdicts in past trials,” 447 U.S. at 328 (internal quotation

marks omitted), the Court concluded that its decision in

Burch should be applied to other cases on direct review.

In reaching this decision, the plurality repeatedly emphasized the truth-enhancing function of the unanimous

jury:

When the requirement of unanimity is abandoned,

the vote of this “additional” juror is essentially superfluous.

The prosecution’s demonstrated

inability to convince all the jurors of the accused’s

guilt certainly does nothing to allay our concern

about the reliability and accuracy of the jury’s verdict. And while the addition of another juror to the

five-person panel may statistically increase the

representativeness of that body, relinquishment of

the unanimity requirement removes any guarantee that the minority voices will actually be heard.

447 U.S. at 333. As the Court recognized, when the prosecutor fails to convince all of the jurors of a defendant’s

guilt, a court cannot be sure that the resulting verdict is

accurate and reliable.

A verdict is just as suspect when a prosecutor fails to

convince two of twelve jurors as when she fails to convince

one of six jurors. How can it be said that a prosecutor has

established guilt beyond a reasonable doubt in such a circumstance? And how can the minority jurors be said to

be represented on the jury when the majority jurors can

21

ignore their votes? The absence of a unanimity requirement seriously diminishes the accuracy of jury verdicts.

Finally, this Court’s treatment of the interrelated requirement of proof beyond a reasonable doubt provides

yet further confirmation of the truth-protecting nature of

the unanimity requirement. In Ivan v. City of New York,

407 U.S. 203 (1972) (per curiam), this Court concluded, under the pre-Teague framework, that the new rule

articulated in Winship would be given “complete” retroactive effect, and applied the standard retroactively on

direct review in that case. Id. at 204-05. The Court reasoned that the reasonable doubt standard is essential to

reducing convictions based on factual error and to upholding “the presumption of innocence—that bedrock

‘axiomatic and elementary’ principle whose ‘enforcement

lies at the foundation of the administration of criminal

law.’” Id. (quoting In re Winship, 397 U.S. at 363-64). In

Winship, the Court explained that a conviction based

upon the civil preponderance standard would amount to

“a lack of fundamental fairness.” 397 U.S. at 363. Later,

Teague incorporated this “fundamental fairness” language into its watershed procedural rule exception to nonretroactivity. 489 U.S. at 312; see also Hankerson v.

North Carolina, 432 U.S. 233, 243-44 (1977) (“Where the

major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially

impairs its truth-finding function and so raises serious

questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive

effect.” (quoting Ivan, 407 U.S. at 204)).

Albeit arising under the pre-Teague standard, Ivan

retains force here. Given the role of the burden of proof

in producing accurate verdicts, there is little doubt that

the result in that case would have been the same even

22

when applied to cases on collateral review under the

Teague standard. And just as conviction without proof beyond a reasonable doubt would be fundamentally unfair,

so too are the convictions Louisiana and Oregon have obtained by evading the complementary protection of the

Sixth Amendment’s unanimity requirement.

C. Modern Experience Confirms That Unanimous

Juries Reach More Accurate Results

Academic research confirms the truth-promoting role

of the unanimous-jury requirement. Unanimous decisionmaking by juries yields numerous benefits that

increase the accuracy of jury verdicts: unanimous-rule juries (1) tend to deliberate longer; (2) ensure that each

individual juror has a voice in the deliberations; (3) more

frequently correct factual errors during deliberations and

engage more frequently in evidence-driven (as opposed to

result-oriented) deliberations; and (4) tend to be more

confident in their results.

1. Studies show that where unanimity is required,

“jurors evaluate evidence more thoroughly, spend more

time deliberating and take more ballots. In contrast,

where unanimity is not required juries tend to end deliberations once the minimum number for a quorum is

reached.” American Bar Ass’n, Principles for Juries and

Jury Trials 24 (2005) (citation omitted); see also Dennis

J. Devine, et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychol. Pub.

Pol’y & L. 622, 669 (2001) (discussing data that tend to

show that the absence of a unanimity requirement leads

to less deliberation); J.H. Davis, et al., The decision processes of 6- and 12-person mock juries assigned

unanimous and two-thirds majority rules, 32(1) J. Personality & Soc. Psychol. 1, 9, 12 (1975) (unanimous juries

spend more time deliberating, while juries only required

23

to reach a two-thirds majority stopped deliberating immediately or within ten minutes of getting the requisite

number of votes). Accordingly, quorum groups may reach

decisions twice as quickly as jurors under a unanimity

rule. R.D. Foss, Structural effects in simulated jury decision making, 40 J. Personality & Soc. Psychol. 1055,

1055-62 (1981).

2. Unanimity also increases the participation of minority-viewpoint jurors in deliberations. Summarizing

empirical findings of the effects of unanimity on civil juries, one researcher found that “[j]urors in the minority

participated more actively and were more influential in

the mock juries who had to reach unanimity. In contrast,

their counterparts operating under a majority-decision

rule were much less active.” Valerie P. Hans, The Power

of Twelve: The Impact of Jury Size and Unanimity on

Civil Jury Decision Making, 4 Del. L. Rev. 1, 23-24

(2001). Studies have also found that majority-rule juries

tend to dismiss the views of minority “holdout” jurors, despite “no evidence that these outvoted holdouts are

irrational or eccentric in ways that justify isolating them

or failing to seriously consider their views.” Shari Seidman Diamond, et al., Revisiting the Unanimity

Requirement: The Behavior of the Non-Unanimous Civil

Jury, 100 Nw. U.L. Rev. 201, 205 (2006). This reduced

consideration of minority viewpoints in nonunanimous juries threatens robust debate and the legitimacy of jury

verdicts. Jeffrey B. Abramson, We, The Jury: The Jury

System and the Ideal of Democracy 179-205 (1994).

3. Unanimous-rule jurors reach more accurate factual conclusions than do majority-rule juries.

Synthesizing empirical studies on juror deliberations, one

commentator found that juries operating under majority

rules correct each other’s factual errors less frequently

24

than do jurors under a unanimity rule. John Guinther,

The Jury in America 81 (1988). Unanimous-rule jury deliberations are accordingly more “evidence-driven,”

beginning more frequently with discussions of evidence

than do majority-rule juries, whose deliberations tend to

be more verdict-driven. See Valerie P. Hans, Deliberation and Dissent: 12 Angry Men Versus the Empirical

Reality of Juries, 82 Chi.-Kent L. Rev. 579, 587 (2007).

4. Jurors on unanimous-rule juries tend to be more

confident in the accuracy of their verdicts. A review of

empirical analyses on jury decisionmaking found that jurors serving on juries required to reach unanimous

verdicts “have tended to report being more satisfied and

confident that the jury reached the correct verdict.”

Devine, supra, at 669.

Given the demonstrated benefits of unanimous decisionmaking, it should come as no surprise that the public

views unanimous juries as more accurate and fair. One

large empirical survey found that participants believed

that twelve-person, unanimous juries were the most accurate, most thorough, most likely to represent minorities,

most likely to minimize bias and maximize fairness, as

compared with smaller and majority-rule juries. Robert

J. MacCoun & Tom R. Tyler, The Basis of Citizen’s Perceptions of the Criminal Jury: Procedural Fairness,

Accuracy, and Efficiency, 12 L. & Hum. Behav. 333, 337–

38 & tbl.1 (1988). This research takes on an added importance in this moment where society is increasingly

noticing racial inequities in the criminal justice system, including the exclusion of racial minorities on juries.

Together, this research and experience confirm that

the unanimity requirement actually delivers on its intended purpose: to ensure the accuracy of convictions.

25

D. The Origins of the Nonunanimous-Jury Rule in

Louisiana and Oregon Confirm That It Diminishes

Accuracy

Finally, the nonunanimous-jury rule of Louisiana and

Oregon was intended to diminish, and has the effect of diminishing, the accuracy of jury verdicts.

Louisiana’s nonunanimous-jury rule was designed to

discriminate against Blacks, and has been doing so since

its inception more than 100 years ago. Eliminating unanimity was designed to render irrelevant Black jurors,

whose participation on juries had recently been required

by federal law. See Ramos, 140 S. Ct. at 1394 (Louisiana

rule was designed “to ensure that African-American juror

service would be meaningless” (internal quotation marks

omitted)); see also id. (describing racist origins of Oregon’s rule); id. at 1417 (Kavanaugh, J., concurring in part)

(describing origins of Louisiana rule in more detail). Arguing that Ramos “plainly announced a watershed rule,”

Chief Justice Johnson of the Louisiana Supreme Court recently explained that “[t]he whole point of the law was to

make it easier to convict African American defendants at

criminal trials, even when some of the jurors themselves

were African American.” Order at 3, Louisiana v. Gipson, 2019-KH-01815 (La. 6/3/2020); 2020 WL 3427193, at

*2.

Given these origins, “it is no surprise that non-unanimous juries can make a difference in practice, especially

in cases involving black defendants, victims, or jurors.”

Ramos, 140 S. Ct. at 1417 (Kavanaugh, J, concurring in

part). Nonunanimous-jury verdicts “can silence the

voices and negate the votes of black jurors, especially in

cases with black defendants or black victims, and only one

or two black jurors.” Id. at 1418.

26

Data on nonunanimous-jury verdicts contained in the

record of State v. Melvin Cartez Maxie, No. 13-CR-72522

(La. 11th Jud. Dist.), and submitted to the Court in the

Joint Appendix in Ramos v. Louisiana, confirm these observations. According to those data, Black defendants in

Louisiana have been 30 percent more likely than white defendants to be convicted by nonunanimous juries. J.A. at

52-53, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 185924), 2018 WL 8545357, at *52-53. Additionally, Black

jurors cast “empty” votes at 64 percent above the expected rate whereas white jurors cast “empty” votes at 32

percent less than the expected rate if empty votes were

evenly dispersed amongst all jurors. Id. at *50-51. In

other words, Louisiana’s rule in reality “silence[s] the

voices and negate[s] the votes” of Black jurors, Ramos,

140 S. Ct. at 1418 (Kavanaugh, J., concurring in part), far

more often than those of white jurors—creating an unacceptable risk of inaccurate verdicts in cases involving

Black defendants.

Nonunanimous-jury rules seriously compromise the

accuracy of jury verdicts, to the detriment of criminal defendants in general and minority defendants in particular.

That was the purpose of the at-issue rules, and that has

been their effect.

*

*

*

A unanimous jury is a hallmark of a fair, reliable criminal trial in this country, and it has been so since our

Nation’s founding. Because of racist laws enacted by Louisiana and Oregon, criminal defendants in those States

have been denied that hallmark protection for far too long,

and they have been advocating for Apodaca’s abrogation

since the day it was decided. Until now, the Court has

recognized only one rule of criminal procedure entitled to

retroactive application on collateral review under the

27

Teague doctrine: the right to appointed counsel. The

right to a unanimous jury should be the second. As it did

in Gideon, this Court should hold that its outlier decision

in Apodaca does not foreclose retroactive application of

the right to a unanimous jury in this case.

CONCLUSION

The judgment should be reversed, and petitioner’s petition for habeas corpus relief should be granted.

28

Respectfully submitted,

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, DC 20005

CASSANDRA STUBBS

BRIAN W. STULL

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

201 W. Main Street, Ste. 402

Durham, NC 27707

EZEKIEL EDWARDS

JENNESA CALVO-FRIEDMAN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

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BRUCE HAMILTON

ACLU FOUNDATION OF

LOUISIANA

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DAVID H. SAFAVIAN

AMERICAN CONSERVATIVE

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JULY 22, 2020

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