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

App. 1

IN THE SUPREME COURT OF PUERTO RICO

People of Puerto Rico No. CC-2019-0916

Respondent

v.

Tomás Torres Rivera

Petitioner

Justice Rodríguez Rodríguez delivered the Opinion of

the Court.

San Juan, Puerto Rico, May 8, 2020.

The principle has been followed

equally in reverse: if a state cannot do it constitutionally, neither

can Puerto Rico.1

On this occasion, it is incumbent upon us to examine the reach of the United States Supreme Court decision in Ramos v. Louisiana, 590 US ___ (2020), No.

18-5924 (slip op.), in our criminal system. Specifically,

we must decide whether, in view of this opinion, a defendant convicted in our jurisdiction based on a nonunanimous verdict violates the inherent procedural

safeguards of the fundamental right to trial by jury

protected by the Sixth Amendment of the Constitution

of the United States.

1

David Helfeld, How Much of the United States Constitution

and Statutes are Applicable to the Commonwealth of Puerto Rico?,

110 F.R.D. 449, 452-75 (1985).

App. 2

I.

Tomás Torres Rivera was charged with committing several criminal offenses: lewd acts with a minor,

Section 133[ ] of the Puerto Rico Penal Code of 2012, 33

LPRA § 5194[(a)] (3 counts); attempted lewd acts, Sections 35, 36, and 133 of the Puerto Rico Penal Code of

2012, 33 LPRA §§ 5048, 5049, and 5149 (1 count), and

child abuse, Section 58 of Law No. 246 of 2011, known

as the Child Safety, Well-being, and Protection Act, as

amended, 8 LPRA § 117[4] (7 counts). After the trial, a

jury found him guilty on all charges. In eight of the

eleven counts, the jury rendered a unanimous guilty

verdict. Nevertheless, the jury rendered a guilty verdict by majority vote on the three counts of lewd acts

with a minor under Section 133[ ] of the Puerto Rico

Penal Code.2

Dissatisfied, Torres Rivera appealed the decision

to the Court of Appeals and made three assignments of

error. First, petitioner averred that the Court of First

Instance erred in denying his petition to instruct the

jury on the requirement that their verdict should be

unanimous. He contended that, in accordance with the

Sixth Amendment of the United States Constitution,

the Territory Clause contained in the federal constitution, and the decision reached by the United States

Supreme Court in Commonwealth of Puerto Rico v.

Sanchez Valle, 136 S.Ct. 1863 (2016), unanimity was

2

For two of those counts, a guilty verdict was rendered with

a vote of 9-3, while a vote of 11-1 was reached for the remaining

count. Thus, found guilty on all charges, petitioner was sentenced

to a total of twenty-two years and six months in prison.

App. 3

an indispensable requirement for a conviction. As to

the second assignment of error, Torres Rivera posited

that the first instance court had erred in its construction of sections of the Penal Code related to aggravating factors and the concurrence of crimes. Lastly,

Torres Rivera pointed out that the prosecution did not

prove beyond a reasonable doubt that he committed

the offenses charged and, thus, the conviction should

be vacated.3

On October 7, 2019, the Court of Appeals issued a

judgment affirming the judgment entered at the trial

court which found petitioner guilty on all counts. Regarding error assigned pertaining to the application of

aggravating factors, the intermediate appellate court

remanded the case to the Court of First Instance to

reexamine the penalties imposed. The Court of Appeals supported its decision to affirm the guilty verdicts rendered by a jury’s majority vote by citing our

ruling in Pueblo v. Casellas Toro, 197 DPR 1003 [97 PR

Offic. Trans. 52] (2017) to the effect that the juror unanimity requirement was not a fundamental constitutional right applicable to Puerto Rico. See, Judgment of

the Court of Appeals of October 7, 2019, at 37, 51.

3

While the case was pending at the appellate level, Torres

Rivera filed a petition for a bond on appeal with the Court of First

Instance. After the hearing, the trial court denied the petition.

Dissatisfied, petitioner filed a petition for appeal with the Court

of Appeals, which was issued as a writ of certiorari and consolidated with the petition for appeal to vacate the conviction. The

petition for writ of certiorari was subsequently denied.

App. 4

Thus, on October 22, 2019, Torres Rivera moved

the Court of Appeals to reconsider its judgment and

stay the proceedings until the United States Supreme

Court issued its opinion in Ramos v. Louisiana. Petitioner maintained that should the United States

Supreme Court rule that the juror unanimity requirement is applicable to the states, he would prevail in his

first assignment of error. Though a resolution notified

on November 12, 2019, the intermediate appellate

court denied his petition to reconsider and stay the

proceedings.

Still aggrieved, on December 11, 2019, Torres Rivera filed a petition for a writ of certiorari with this

Court and a Motion to Stay Proceedings. In the petition

for certiorari, he contended – among other matters4 –

4

In his petition for certiorari, Torres Rivera made three additional assignments of error related to the standard of proof and

the appropriateness of the mitigating factors in his specific case.

Specifically, the errors assigned were the following:

“FIRST ERROR: The Court of Appeals, Carolina-Guayama

Judicial Region, Special Division, erred in denying the Motion to

Stay Proceedings until the Supreme Court of the United States

renders its opinion in the case of Ramos v. Louisiana, as regards

to whether the Fourteenth Amendment of the Constitution of the

United States incorporates to the States the jury unanimity requirement for convictions, since this is the same question raised

as an error on appeal in this case and, should the federal Supreme

Court find in favor of the defendant, Torres Rivera would prevail

regarding the argument that a nonunanimous guilty verdict is

unconstitutional.

“SECOND ERROR: The Court of Appeals, CarolinaGuayama Judicial Region, Special Division, erred in affirming the

decision of the Court of First Instance to not consider the mitigating factors when imposing the penalty.

App. 5

that the Court of Appeals had erred in not staying the

proceedings and affirming the conviction based on a

nonunanimous guilty verdict rendered by a jury. In so

doing, Torres Rivera restated the arguments posited

with the Court of Appeals and maintained that it

would be proper to stay the proceedings in his case until the United States Supreme Court ruled over the

constitutionality of nonunanimous guilty verdicts rendered by juries in criminal cases. On January 24, 2020,

this Court issued a resolution denying the issuance of

the writ for certiorari and the motion to stay proceedings, notice of which was served on January 29. Torres

Rivera timely filed a motion for reconsideration which

was also denied through resolution and notified on

March 3, 2020.

While pending a second motion for reconsideration

filed on March 6, 2020, Torres Rivera filed on April 21,

2020 a paper captioned Urgent Motion to Take Judicial

Notice of Ramos v. Louisiana and to Issue a Remedy in

Accordance Therewith. In this motion, Rivera Torres

stated that the decision of the United States Supreme

Court on April 20, 2020 in the case Ramos v. Louisiana,

“THIRD ERROR: The Court of Appeals, Carolina-Guayama

Judicial Region, Special Division, erred in affirming the judgment

entered by the Court of First Instance without weighing the impact of the prosecution’s slim and bare evidence and stereotyped

testimony on the constitutional standard requiring the State to

prove beyond a reasonable doubt all the elements of the offense.

“FOURTH ERROR: The Court of Appeals erred in ruling

that the prosecution submitted evidence to prove that lewd acts

tend to awake, excite or satisfy the sexual passion or desire of the

accused.” Petition for certiorari, at 4.

App. 6

590 US ___ (2020), No. 18-5924 (slip. op.), disposed of

his case and, pursuant thereto, it lied to vacate the

judgment entered against him. Having received this

Urgent Motion as a motion for order in aid of jurisdiction, on April 22, 2020 we ordered the Solicitor General

to appear before us and show cause why, in light of the

decision in Ramos v. Louisiana, we should not vacate

the judgment entered by the trial court in this case.

Observing our order, the Solicitor General filed on

May 1, 2020 a Motion in Compliance with Order indicating, at the outset, that “the Office of the Solicitor

General, on behalf of the People of Puerto Rico, in accordance with the applicable caselaw . . . acknowledges

that the decision in Ramos v. Louisiana generally applies to Puerto Rico.” In addition, the Solicitor General

recognizes to begin with that he “agrees that in this

case a decision may be rendered only to the effect of

ordering a new trial exclusively for the 3 counts for

which the jury rendered a nonunanimous verdict, in

accordance with the new legal framework.” See, Motion

in Compliance with Order, at 2. The Solicitor General,

however, clarifies that this concession “is utterly bound

by the procedural events of this case, which is pending

direct review before this Court, with 3 nonunanimous

guilty verdicts rendered by the jury, and a defendant

who preserved the issue.” Id.

With the benefit of the parties’ briefs and considering the procedural stage of the controversy at bar,

this Court grants the Second Motion for Reconsideration filed by the petitioner and issues the writ of certiorari only in regard to the first assignment of error, so

App. 7

as to pass on the effects of the United States Supreme

Court decision in Ramos v. Louisiana in our legal system.5

II.

The Sixth Amendment of the Constitution of the

United States defines the rights recognized to the accused in federal criminal proceedings by establishing

that

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to

be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defense.

[US Const. amend. VI, LPRA vol. 1.]

In time, the different rights listed in this amendment have been recognized as fundamental rights for

an impartial criminal trial and have been expressly

incorporated to the States through the Fourteenth

5

On May 4, 2020, the United States Supreme Court issued

a writ of certiorari in the case of Edwards v. Vannoy, No. 19-5807

(5th Cir.), to resolve the issue regarding the retroactive effect of

Ramos v. Louisiana, 590 US ___ (2020).

App. 8

Amendment.6 Consequently, the fundamental rights of

the accused have been recognized at the state level,

namely: the right to a speedy trial,7 the right to a public trial,8 the right to present witnesses in defendant’s

favor,9 the right to confront witnesses testifying

against the defendant,10 the right to counsel,11 and,

6

See, Duncan v. Louisiana, 391 US 145, 148-49 (1968) (“The

test for determining whether a right extended by the Fifth and

Sixth Amendments with respect to federal criminal proceedings

is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this

Court. The question has been asked whether a right is among

those ‘fundamental principles of liberty and justice which lie at

the base of all our civil and political institutions,’ whether it is ‘a

basic in our system of jurisprudence,’ and whether it is a ‘fundamental right, essential to a fair trial.’“) [Citations omitted.] See

also, Gosjean v. American Press, Co., 297 US 233, 243-244 (1936).

7

Klopfer v. North Carolina, 386 US 213, 223 (1967) (“We

hold here that the right to a speedy trial is as fundamental as any

of the rights secured by the Sixth Amendment”).

8

In re Oliver, 333 US 257, 278 (1948) (“It is ‘the law of the

land’ that no man’s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried

in a public tribunal.”).

9

Washington v. Texas, 388 US 14, 19 (1967) (“Just as an accused has the right to confront the prosecution’s witnesses for the

purpose of challenging their testimony, he has the right to present

his own witnesses to establish a defense. This right is a fundamental element of due process of law.”).

10

Pointer v. Texas, 380 US 400, 403-04 (1965) (“We hold today that the Sixth Amendment’s right of an accused to confront

the witnesses against him is likewise a fundamental right and is

made obligatory on the States by the Fourteenth Amendment.”).

11

Gideon v. Wainwright, 372 US 335, 344 (1963) (“The right

of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in

ours.”).

App. 9

particularly relevant to the question at hand, the right

to a trial by jury.12

In Duncan v. Louisiana, 391 US 145 (1968), the

United States Supreme Court ruled that the right to a

trial by jury in criminal proceedings is inherent to the

due process of law pervading throughout the American

constitutional scheme. See, Duncan, 391 US ___, at 149

(“Because we believe that trial by jury in criminal

cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases whichwere they be tried in a federal court – would come

within the Sixth Amendment’s guarantee.”).

Subsequent decisions defining the outlines of this

fundamental right to a jury trial rejected to impose on

the states, through the Fourteenth Amendment, the requirement for unanimous verdicts in order to convict.

See, Apodaca v. Oregon, 406 US 404 (1972); Johnson v.

Louisiana, 406 US 356, 360 (1972); Williams v. Florida,

399 US 78 (1970). In this way, it is clear that the United

States Supreme Court opted not to require the uniform

incorporation against the states of the fundamental

right to a trial by jury as enshrined in the Sixth

Amendment.13

12

Duncan, 391 US, at 157-58 (“Our conclusion 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.”).

13

However, in Malloy v. Hogan, 378 US 1, 10-11 (1964), the

United States Supreme Court, in an opinion delivered by Justice

App. 10

Until very recently, thus, United States Supreme

Court caselaw upheld the validity of state convictions

by nonunanimous jury verdicts.14 In accordance with

this pattern, in Pueblo v. Casellas Toro, 197 DPR 1003,

1005 [97 PR Offic. Trans. 52, ___] (2017), this Court

held that the unanimity requirement for guilty verdicts was not a fundamental right recognized by the

United States Supreme Court and, therefore, was not

applicable to Puerto Rico. In this sense, this Court

noted that the incorporation of the right to a trial by

jury to the states by virtue of Duncan did not entail

“extensive changes in a state’s criminal procedure as

to juries of less than twelve jurors and the unanimity

requirement for a conviction.” Id. at 1014 [97 PR Offic.

Trans. 52, at ___].

Brennan, suggested the importance of the uniform interpretation

of the substantive content of the rights protected by the Bills of

Rights, as these rights have been incorporated to the states

through the Fourteenth Amendment. (“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.’ ”).

14

After the decision in Apodaca and until recently, the

United States Supreme Court repeatedly denied granting petitions for writ of certiorari seeking to review nonunanimous verdicts at the state level and demanding the recognition of the

unanimity requirement as an essential element of the right to a

trial by jury. See: Bowen v. Oregon, O.T. 2009, No. 08-1117, cert.

denied, 558 US 815, S.Ct. 52, 175 L.Ed. 2d 21 (2009); Lee v. Louisiana, O.T. 2008, No. 07-1523, cert. denied, 555 US 823, 129 S.Ct.

143, 172 L.Ed.2d 39 (2008); Logan v. Florida, O.T. 2007, No. 077264, cert. denied, 552 US 1189, 128 S.Ct. 1222, 170 L.Ed.2d 76

(2008).

App. 11

Hence, in Pueblo v. Casellas Toro this Court concluded that a guilty verdict reached by the consensus

of, at least, nine out of twelve jurors was valid and satisfied the requirements of the Sixth Amendment right

to a trial by jury. Casellas Toro, 197 DPR, at 1019 [97

PR Offic. Trans. 52, at ___]. Our decision was made pursuant to the rule of law in force at that moment, Thus,

we upheld the text of Section 11, Clause 2, of our Bills

of Rights, which allows guilty verdicts by a majority

vote. (“In all prosecutions for a felony[,] the accused

shall have the right of trial by an impartial jury composed of twelve residents of the district, who may render their verdict by a majority vote which in no case

may be less than nine”). PR Const. art. II, § 11, LPRA

vol. 1.

Lastly, as grounds for our decision, this Court

stressed that “in Puerto Rico only the fundamental

rights of the United States Constitution recognized by

its Supreme Court apply.” Casellas Toro, 197 DPR, at

1019 [97 PR Offic. Trans. 52, at ___]. Given that the

size of a jury or the unanimity requirement were not

explicitly recognized by the federal Supreme Court as

essential elements of the fundamental right to a trial

by jury, we held then that the unanimity requirement

provided in the Sixth Amendment of the United States

Constitution did not apply to Puerto Rico.

III.

The prevailing standard in our legal framework

and in the United States regarding the substance of

App. 12

the right to a trial by jury changed significantly with

the United States Supreme Court decision in Ramos v.

Louisiana, 590 US ___ (2020) No. 18-5924 (slip op.) issued on April 20, 2020. In that case, the federal Supreme Court concluded that the fundamental right to

a trial by jury under the Sixth Amendment, as incorporated throughout the states by way of the Fourteenth Amendment, does not admit nonunanimous

verdicts in criminal cases tried in state courts. See,

Ramos v. Louisiana, at 7. (“[I]f Sixth Amendment’s

right to a jury trial requires a unanimous verdict to

support a conviction in federal court, it requires no less

in state court.”)

To summarize, in Ramos v. Louisiana, a defendant

questioned a judgment issued in the state of Louisiana

through which he was found guilty of committing a felony by way of a guilty verdict of a majority of 10 out of

12 jurors. As a result of this verdict, he was sentenced

to life in prison without the possibility of parole. The

argument posed before the United States Supreme

Court was that unanimity was an essential requirement of the right to a trial by jury in criminal matters,

and that any provision of state law allowing nonunanimous verdicts for felony convictions was unconstitutional.

The United States Supreme Court agreed with the

defendant and vacated the judgment against him. In

so doing, it concluded that the right to a trial by jury

enshrined in the Sixth Amendment requires a unanimous verdict in criminal proceedings where the defendant is accused of a felony. The Court’s reasoning in

App. 13

Ramos v. Louisiana dispels all doubt with respect to

how the requirement of a unanimous verdict constitutes a fundamental procedural protection for all those

accused of a felony. As a result, a unanimous jury represents an immanent quality of the fundamental right

to a trial by jury under the Sixth Amendment.

In short, the analysis of the highest court in the

United States scrutinized the phrase “impartial jury”

included in the Sixth Amendment to construe the substantive content and procedural requirements of a

criminal jury trial. After examining the history of this

concept and its inclusion in the Constitution, the Court

concluded that an impartial trial inexorably requires a

unanimous verdict of the jury. See, Ramos, at 4. (“The

text and structure of the Constitution clearly suggest

that the term ‘trial by an impartial jury’ carried with

it some meaning about the content and requirements

of a jury trial. One of these requirements was unanimity. Wherever we might look to determine what the

term ‘trial by an impartial jury trial’ meant at the time

of the Sixth Amendment’s adoption – whether it’s the

common law, state practices in the founding era, or

opinions and treatises written soon afterward – the answer is unmistakable. A jury must reach a unanimous

verdict in order to convict.”)

IV.

Insofar as the right to a trial by jury in a felony

criminal proceeding constitutes a fundamental right,15

15

See, Duncan; Section II of this Opinion.

App. 14

the United States Supreme Court decision in Ramos v.

Louisiana serves to delimit the content and the scope

of this right. In that sense, this federal ruling institutes the unanimity of the jury as a substantive requisite for obtaining a criminal conviction. Thus,

unanimity is recognized as a natural corollary to the

impartiality demanded by the Sixth Amendment.

Prior to this decision, the precise contours of the

right to a trial by jury had not been specifically defined.

Moreover, an analysis of the caselaw concerning the

procedural guarantees contained in the Sixth Amendment reveals that it was not incorporated until the

1960s, when the Warren Court sought to extend to

state courts the same protections that apply in federal

court.16 It was not until 1968 in Duncan that the

United States Supreme Court recognized the right to

a trial by jury in felony cases as a fundamental right

applicable to the states by virtue of the Fourteenth

Amendment.

In the case of Puerto Rico, the judicial benchmark

for the right to a trial by jury under the Sixth Amendment had been decided prior to its recognition as a

fundamental right in Duncan. In Balzac v. Porto Rico,

258 US 298 (1922), the United States Supreme Court

concluded that some provisions of the United States

Constitution did not apply to Puerto Rico as an unincorporated territory. Id. at 304-306. According to the

16

For a compendium of the development of the Sixth Amendment, its complexities, and the incorporation of its procedural

guarantees to the states, see, Sanjay Chhablani, Disentangling

the Sixth Amendment, 11 U. Pa. J. Coast. L. 487 (2009).

App. 15

Court’s reasoning, the right to a trial by jury was not

fundamental in nature and thus did not extend to all

the territories under the jurisdiction of the United

States. Id. at 309. Specifically, the federal court resorted to an earlier decision to conclude the following:

If the right to trial by jury were a fundamental right which goes wherever the jurisdiction

of the United States extends, or if Congress,

in framing laws for outlying territory, was

obliged to establish that system by affirmative legislation, it would follow that, no matter

what the needs or capacities of the people,

trial by jury, and in no other way, must be

forthwith established.

Id. (citing Dorr v. United States, 195 US 138, 148

(1904)).

These statements, however, served to reaffirm the

controversial theory of territorial incorporation initially articulated by Justice White in his Concurring

Opinion in Downes v. Bidwell, 182 US 244 (1901). According to this theory, only the rights recognized as

fundamental would extend to unincorporated territories of the United States. See, [David] Helfeld, [How

Much of the United States Constitution and Statutes

are Applicable to the Commonwealth of Puerto Rico?,

110 F.R.D. 449], 458][(1985)].

Almost a century after the ruling of the United

States Supreme Court in Balzac, it is evident that the

passage of time has modified the law of the land, to the

point where what was decided therein with respect to

App. 16

the right to a trial by jury has become dead letter. By

expressly recognizing in Duncan that right as fundamental, it was automatically made extensive to Puerto

Rico. This occurred at the margins of the inextricable

historical interweaving of the theory of territorial incorporation outlined in Balzac. After all, regardless of

the legal doctrine cited, the protections and guarantees

that emanate from the rights designated as fundamental by the United States Supreme Court extend to

Puerto Rico. See, Casellas Toro, 197 DPR, at 1019 [97

PR Offic. Trans. 52, at ___].

Regarding the application of fundamental rights

to Puerto Rico, the United States Supreme Court has

accepted that “[i]t is clear now, however, that the protections accorded by either the Due Process Clause of

the Fifth Amendment or the Due Process and Equal

Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico.” Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426

US 572, 600 (1976). See also, Torres v. Com. of Puerto

Rico, 442 US 465, 471 (1979). (“As in Examining Board

v. Flores de Otero . . . we have no occasion to determine

whether the Fourth Amendment applies to Puerto Rico

directly or by operation of the Fourteenth Amendment.”)

The extension to Puerto Rico of the right to trial

by jury as a fundamental right was tacitly recognized

by this Court in Pueblo v. Laureano, 115 DPR 447 [15

PR Offic. Trans. 589](1984), when it held that the governing standard when determining whether a person

had a right to a trial by jury in Puerto Rico must be the

App. 17

severity of the maximum sentence that could be imposed for the offense of which the individual stood accused. In so doing, the Court applied the ruling of the

United States Supreme Court in Baldwin v. New York,

399 US 66 (1970), to the effect that a jury trial would

extend to crimes punishable [by imprisonment] for a

term greater than six months, regardless of the classification or seriousness of the offense.

Subsequently, in Pueblo v. Santana Velez, 177 DPR

61 [77 PR Offic. Trans. 5] (2009), this Court, without

ambages, effectuated the theory that “[t]he right to a

trial by jury under the Sixth Amendment is a fundamental right that applies to the states through the due

process clause of the Fourteenth Amendment and,

therefore, to Puerto Rico.” Id. at 65 [77 PR Offic. Trans.

5, at ___]. That conclusion was the basis for the analysis outlined in Casellas Toro, which underscored that

“through the process of selective incorporation, the

right to a trial by jury in criminal cases was acknowledged as fundamental” and that “in Puerto Rico, only

those fundamental rights of the United States Constitution recognized by the United States Supreme Court

are applicable.” Casellas Toro, 197 DPR, at 1014, 1019.

[97 PR Offic. Trans. 52, at ___]. Thus, it cannot be denied that the right to a trial by jury applies fully to

Puerto Rico.

V.

In the case at hand, Torres Rivera requested that

we vacate the judgments entered against him for three

App. 18

counts of lewd acts on grounds that the decision of the

United States Supreme Court applies to Puerto Rico

and, consequently, requires the unanimity of verdicts

returned in our jurisdiction. As we have indicated, the

Solicitor General did not oppose this contention and

acknowledged that, in Torres Rivera’s specific case, it

is proper for the Court to vacate the judgments issued

for three of the eleven offenses of which he was convicted by way of nonunanimous verdicts, and order a

new trial.17 See, Motion in Compliance with Order, at

17

The members of the Constituent Assembly discussed the

very situation considered herein. The text of Section 11 admits

unanimous verdicts, although it grants the legislature flexibility

to establish the number of votes necessary to obtain a conviction

that would satisfy the demands of Section 11. It is thus recorded

in the Journal of the Constitutional Assembly when acknowledging the possibility that using the phrase “no less than nine” would

allow for different variations through legislation. See, Diario de

Sesiones de la Canvancion Constituyente de Puerto Rico [Journal

of the Constitutional Assembly of Puerto Rico], at 1939-1941 (digital version). Similarly, the Report of the Commission for the Bill

of Rights explains that “the formula proposed would allow the

[Legislative] Assembly to increase the margin of the majority up

to unanimity, if it were to deem it convenient in the future.” Informe de la Comision de la Carta de Derechos [Report of the Commission for the Bill of Rights], at 3184 (digital version). See also,

3 Jose Trias Monge, Historia Constitucional de Puerto Rico, Rio

Piedras, Ed. UPR, 1982, at 194-195.

The legislative authority to require that every conviction be

decided by all twelve jurors has always been included in the constitutional constraint of “no less than nine.” Although the Legislative Assembly has never increased the number of votes required

to obtain a conviction, as the Constitutional Assembly foresaw,

the decision in Ramos v. Louisiana and our reading of Section 11

as ordered by Ramos would require the legislature to amend the

Rules of Criminal Procedure to clearly and unambiguously order

the unanimity requirement in guilty verdicts in accordance with

App. 19

24-25 (“the annulment of the verdicts in cases

GIS2015G0002, GIS2015G003 y GIS2014G0011 and a

new trial to that effect are in order”.) (Emphasis

added.)

Nevertheless, the Solicitor General advises that

his position is in response to the fact that this case “is

pending direct review before this Court.” Motion in

Compliance with Order, at 2.18 At the same time, he

this legal precedent. Hence, the practical effect of the ruling in

Ramos v. Louisiana is to suppress the flexibility that the text of

the Constitution afforded the legislature to increase the minimum

of nine by way of statute.

18

Regarding this, we highlight that the ruling in Ramos v.

Louisiana specifically refers to the applicability of the standard

established to cases that are pending review and are therefore not

final and unappealable. Thus, in addressing the concerns of the

dissenting judges as to the effects of the decision, the United

States Supreme Court explains that “[t]he first concerns the fact

Louisiana and Oregon may need to retry defendants convicted of

felonies by nonunanimous verdicts whose cases are still pending

on direct appeal.” Ramos v. Louisiana, at 22. These statements

are in line with previous rulings of this Court concerning the retroactive application of caselaw standards to cases pending before

our courts. Specifically, in Pueblo v. Torres Irizarry, 199 DPR 11

[99 PR Offic. Trans. 3] (2017), we affirmed our decision in Pueblo

v. Gonzalez Cardona, 153 DPR 765 [53 PR Offic. Trans. 51] (2001),

regarding how a standard adopted through caselaw providing a

constitutional defense to a defendant would apply retroactively

“so long as at the time this standard is adopted the judgment

from which relief is sought is not final and unappealable.” Torres

Irizarry, 199 DPR, at 27 [99 PR Offic. Trans. 3, at ___]. See also,

Pueblo v. Thompson Faberlle, 180 DPR 497 [80 PR Offic. Trans.

22] (2010) (citing Gonzalez Cardona, 153 DPR, at 770-771 [53 PR

Offic. Trans. 51, at ___] (2001)). We reiterate, however, that the

issue of retroactivity is not under the consideration of this Court

and, as we have indicated, the retroactive application of the

unanimity requirement is currently before the United States

App. 20

requests that the validity of the unanimous verdicts

returned for the remaining eight offenses and for

which the defendant was convicted be affirmed. Regarding the validity of these convictions, the Solicitor

General emphasizes that Torres Rivera must not be released from custody and must continue to serve the

sentence imposed for those eight offenses. Note, however, that the relief sought by Torres Rivera’s legal representation through Urgent Motion is circumscribed

precisely to “vacating the conviction as it pertains to

Torres Rivera’s guilt for the three infractions of Section

133[ ] of the Penal Code, since the verdict was not

unanimous.” Urgent Motion, at 6.19 Regarding the remaining errors assigned in the petition for certiorari,

Supreme Court in the case of Edwards v. Vannoy, No. 19-5807

(5th Cir.), issued May 4, 2020. Regarding this, in the Opinion of

the Court as delivered by Justice Gorsuch, the Court acknowledged that the ruling and the analysis on which its decision is

based does not include cases where a final and unappealable judgment has been rendered since the retroactive application of the

standard was not before the Court in this case. Id. at 24. (Gorsuch, J.) (“Whether the right to jury unanimity applies to cases

on collateral review is a question for a future case where the parties will have a chance to brief the issue and we will benefit from

their adversarial presentation. That litigation is sure to come,

and will rightly take into account the States’ interest in the finality of their criminal convictions.”)

19

Regarding the remaining errors assigned in the petition

for certiorari, we decline to exercise our jurisdiction to review

them, as we believe that the Court of Appeals did not err in affirming the judgments entered by the Court of First Instance for

the eight offenses for which the jury returned a unanimous verdict.

App. 21

we decline to exercise our jurisdiction to review the decision rendered by the Court of Appeals.

A reading of the Opinion of the United States

Supreme Court in Ramos v. Louisiana shows that unanimity constitutes an additional essential procedural

protection that is derived from and is of the same substance as the fundamental right to a jury trial enshrined in the Sixth Amendment to the United States

Constitution. The recognition of unanimity as an inherent characteristic of the fundamental right to a

trial by an impartial jury is binding in our jurisdiction

and obligates our courts to require unanimous verdicts

in all felony criminal proceedings tried in their courtrooms.20

By virtue of the change in the law as regards to

recognition of the unanimity requirement as an essential component of the right to a trial by jury, it is proper

for us to vacate the judgments entered against Torres

Rivera for the three counts of lewd acts under Section

133[ ] of the Penal Code for which a unanimous verdict

was not returned. Pursuant to the petition for relief

contained in Solicitor General’s Motion in Compliance

with Order, we order a new trial be held for these

three counts. We advise that, pursuant to the standard

20

It can be no other way. To not apply the Ramos v. Louisiana ruling in our jurisdiction would result in the absurdity of allowing Puerto Rico to deny its citizens the full exercise of a

fundamental right that all states are bound to recognize. In the

words of Professor Helfeld, “[n]ot to do so would require a justification, explaining why Puerto Rico could deny a fundamental

right which no state can deny.” Helfeld, supra, at 458.

App. 22

established in Ramos v. Louisiana, in order to obtain a

conviction, the jury must return a unanimous verdict.

VI.

For the foregoing reasons, we vacate the judgments entered by the Court of First Instance against

Torres Rivera for the three counts of lewd acts as typified in Section 133[ ] of the Puerto Rico Penal Code, and

we order a new trial be held in accordance with our

ruling hereunder. The convictions for the surviving

charges shall remain unaltered.

(illegible signature)

Anabelle Rodriguez Rodriguez

Associate Justice

App. 23

IN THE SUPREME COURT OF PUERTO RICO

People of Puerto Rico No. CC-2019-0916

Respondent

v.

Tomás Torres Rivera

Petitioner

JUDGMENT

San Juan, Puerto Rico, May 8, 2020

For the arguments itemized in the previous Opinion, we vacate the judgments entered by the Court of

First Instance against Torres Rivera for the three

counts of lewd acts typified in Section 133[ ] of the Penal Code of Puerto Rico, and we order a new trial be

held in accordance with this decision. The convictions

for the surviving charges remain unaltered.

It was so agreed by the Court and certified by the

Clerk of the Supreme Court. Justice Estrella Martinez

agrees with the Opinion issued by this Court, except

for the content of note 18, with which he concurs, and

made the following pronouncement:

Today come upon a new rule of law, laid

down by the Supreme Court of the United

States in matters of the administration of the

jury as an institution. Specifically, the verdict

unanimity requirement, as an individual

guarantee required to be found guilty. In said

decision, the highest-ranking federal court

App. 24

clarified its application to the states of the

Union. Now, just like many other legal controversies that the courts have examined historically, today we must determine the effects of

this decision in Puerto RICO.

Today we analyze a constitutional standard that applies to Puerto Rico, as it has

been recognized as a fundamental right, even

though the United States Supreme Court has

not expressly identified the concrete basis for

such application. It often does not suffice to

know that a certain claim is tenable, but it

must come with a solid reason supporting it,

given the legal consequences derived from the

absence or presence of this ground. Some sectors aim to minimize that reality, but I believe

that the lack of coherence, clarity, and obliteration of discriminatory visions in judicial decisions is a significant part of the seed that

maintains Puerto Rico in a legal limbo in multiple controversies that are constitutional in

nature and of compelling public interest.

Therefore, along with the conclusion that

Ramos v. Louisiana, 590 US ___ (2020) applies

to our jurisdiction, I must draw attention to

that reality which, ultimately, frames the context in which we must resolve controversies

related to the relations between Puerto Rico

and the United States. With this in mind, I

shall exposit two motivating factors behind

this pronouncement.

First and foremost, Puerto Rico deserves

a more coherent, democratic, and unambiguous

treatment regarding constitutional questions

App. 25

brought before the United States Supreme

Court. In not every constitutional question is

the treatment afforded to Puerto Rico clear

and fair. As I have mentioned before, “a colonial relationship creates inequalities and controversies in many ambits of society. In all

those dimensions, there is space for legal contentions, grounds, arguments, and solutions.

By reason thereof, the members of the federal

and local Judiciary are not exempt, as jurists,

from addressing civil and criminal controversies or other matters where inequalities, social tensions and, even more importantly, who

has the power to do a certain thing, are challenged.” Luis. F. Estrella Martinez, Puerto

Rico: 1a revolucion de un apartheid territorial,

52 Rev. Jur. UIPR 425, 425 (2017). Today, we

cannot even concretely affirm the guarantee

recognized here stems from, as a result of the

precedents that currently continue to haunt

us and which Judge Torruella of the First Circuit of Appeals denominates as “the doctrine

of separate and unequal [people].” See, Juan

R. Torruella, The Supreme Court and Puerto

Rico: The Doctrine of Separate and Unequal,

Rio Piedras, Ed. UPR (1985). This unleashes

what has been coined as a juridical apartheid

in the Caribbean. It is high time that the legal

treatment afforded the citizens of Puerto Rico

be grounded on ideas that dispense with

caselaw born from discriminatory and unequal principles. “[T]he humiliating constitutional reaction chain brought on by the

Insular Cases continues today to enforce a

separate and unequal treatment for the U.S.

App. 26

citizens [who live in Puerto Rico].” Gustavo A.

Gelpi, Los Casos Insulares: Un Estudio Histórico Comparativo de Puerto Rico, Hawaii y

las Islas Filipinas, 45 Rev. Jur. UIPR 215, 218

(2011).

In such a scenario, the law of the land

provides that not all the guarantees and

rights recognized in the Federal Constitution

necessarily apply to the citizens of Puerto

Rico, due to a territorial apartheid. The result

is a half-baked democracy that tarnishes the

United States’ standing to preach human

rights elsewhere.

Today, despite the complexities of this legal limbo, I state once again that we are examining a constitutional rule that applies to

Puerto Rico because it has been recognized as

a fundamental right, even though the United

States Supreme Court has not expressly identified the concrete grounds for such application. In this context, the second motivating

factor for these pronouncements lies in fully

discussing the rules of retroactivity that

might apply. On many occasions, footnotes

have equal or greater relevance in the development of the law. In fact, there are important

decisions that are known more for a simple

footnote, such as United States v. Carolene

Prods. Co., 304 US 144, 152 n.4 (1938). Incidentally, in that footnote elements germane

to these expressions are discussed, as Judge

Stone conveyed that prejudice against certain discreet and insular minorities may be a

App. 27

special condition and which may call for require greater judicial inquiry.

This is precisely that sort of Opinion,

where a footnote is particularly relevant for

the future of the administration of the criminal justice system and constitutional law.

Since footnotes also lay down precedent and

are part of the decision, I am forced to concur

in this regard. I specifically refer to footnote

18. I am certainly in favor of recognizing the

general rule that a decision that sets a new

criminal constitutional standard applies retroactively to cases pending in courts, that is,

cases that are not yet final and unappealable.

Pueblo v. Thompson, 180 DPR 497, 508 [80 PR

Offic. Trans. ___, ___] (2010) (“Thus, we restate the rule we set forth in Pueblo v. Gonzalez Cardona, [153 DPR 765 (2001)], where we

adopted the federal practice of extending judicial interpretation of criminal procedural

rules that implicate constitutional protections

to cases that were not already final and unappealable at the time the opinion was issued.”)

Now, the retroactivity doctrine includes

other aspects not mentioned in said footnote.

Moreover, Ramos v. Louisiana, as delivered by

Justice Gorsuch, recognizes an exception to

the general principle that the retroactivity of

new constitutional criminal rules laid down

by caselaw extends only to cases pending before the courts, thus recognizing the possibility that the new constitutional rule may

extend to final and unappealable cases. Id. at

24 (Gorsuch, J.) (“Under Teague v. Lane, [489

App. 28

US 288 (1989),] newly recognized rules of

criminal procedure do not normally apply in

collateral review. True, Teague left open the

possibility of an exception for “watershed

rules” “implicat[ing] the fundamental fairness

[and accuracy] of the trial.”). Conversely, in

Teague v. Lane, it was resolved that if the new

rule adopted is substantive, retroactivity will

also apply to final and unappealable cases. Id.

at 307 (“if it places ‘certain kinds of primary,

private individual conduct beyond the power

of the criminal law-making authority to proscribe’ ”); Whorton v. Bockting, 549 US 406

(2007) (“A new rule applies retroactively in a

collateral proceeding only if (1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e]

of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal

proceeding.”); Schriro v. Summerlin, 542 US

348 (2004).

Consequently, for the purposes of examining the retroactivity of a new constitutional

rule, its contents must be evaluated rather

than the procedural stage of the case. If the

rule is substantive or watershed, it will apply

to all cases, regardless of whether they became final and unappealable. Contrariwise, if

this were a procedural rule, it would only apply to cases pending for review before the different courts. “The challenge for the courts,

thus, lies in recognizing which type of new

rule has been laid down before determining

the scope of its retroactive application.” Iris Y.

Rosario Nieves, Alcance de la retroactividad

de las normas constitucionales enunciadas

App. 29

jurisprudencial – mente: una replica al

profesor Ernesto Chiesa, In Rev (April 19,

2019). To such effects:

[W]hen the Supreme Court of

the United States effectuates a new

constitutional rule, the states are

forced to determine, before deciding

the scope of its retroactive application, whether it is a procedural, substantive, or watershed rule. The

result of said exercise may lead to the

conclusion, in accordance with the

Teague exceptions, whether the retroactive application of the rule extends to cases that are already final

and unappealable. In doing so, the

states are free to decide whether to

broaden the scope of the retroactive

application of a mere procedural rule,

for instance, whether to apply it to

cases that had already become final

and unappealable. This decision,

however, must not be confused with

the fact that when dealing with a

substantive rule, it must be applied

retroactively, as the states have no

discretion to do otherwise, even in final and unappealable cases.

Id.

As for the retroactive application of the

new constitutional rule adopted in Ramos v.

Louisiana, the United States Supreme Court

limited its analysis to expressly recognize the

App. 30

application of the new constitutional rule to

active cases, including those pending at the

appellate stage, as it was the factual situation

under its consideration. However, a definitive

majority standpoint as to the retroactive application of the new rule to final and unappealable cases was not disclosed, thus leaving

open the possibility of a retroactive application in those scenarios. Id. at 24 (Gorsuch, J.)

(“Whether the right to jury unanimity applies

to cases on collateral review is a question for

a future case where the parties will have a

chance to brief the issue and we will benefit

from their adversarial presentation. That litigation is sure to come, and will rightly take

into account the States’ interest in the finality

of their criminal convictions”).

In this case, there must be no doubt as to

the application of the new constitutional rule

discussed in the opinion, as the case is active

and pending review at the appellate stage.

Now, it seems misguided to reference only the

retroactive application to pending cases and

sidestep the range of possibilities mentioned

herein. It also bears pointing out that we

make an isolated mention that the United

States Supreme Court will hear a case related

to the retroactivity of the constitutional rule

without recognizing that the states and

Puerto Rico are at liberty to determine the

scope of said retroactivity. This clarification,

in my opinion, is important. Therefore, for the

foregoing reasons, I consider that the Opinion

should have included said legal rules, which

are omitted in the footnote. The way the

App. 31

footnote is drafted, even though it advises

that the retroactivity issue is not being resolved, sends the wrong message that the only

possibility of applying the new constitutional

rule is to pending cases. Regardless of the

course of action that we may adopt in a future

controversy, I believe that we should have

stated the full scope of the law that may be

applicable to this issue and to other controversies on the matter of retroactivity.

(illegible signature)

José Ignacio Campos Pérez

Clerk of the Supreme Court

I CERTIFY that this is an Official Translation

made by the Bureau of Translations of the Supreme Court of Puerto Rico.

In San Juan, Puerto Rico: MAY 20 2020

/s/ Sonnya I. Ramos Zeno, Esq.

Chief Deputy

Clerk of the Supreme Court /s/ [Illegible]