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

No. 19-5807

Sn the Supreme Court of the Gnitted States

THEDRICK EDWARDS,

Petitioner,

V.

DARREL VANNOY, WARDEN

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE STATE OF OREGON

IN SUPPORT OF RESPONDENT

ELLEN F’. ROSENBLUM

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

DouG M. PETRINA

CHRISTOPHER A. PERDUE

Assistant Attorneys General

1162 Court Street NE

Salem, Oregon 97301-4096

Phone: (508) 378-4402

benjamin.gutman@

doj.state.or.us

QUESTION PRESENTED

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

that the Sixth Amendment allowed nonunanimous

juries in state court, Oregon conducted thousands of

felony jury trials in which the jury was instructed

that “ten or more jurors’ could convict. Ramos uv.

Louisiana, 140 8. Ct. 1890 (2020), overruled Apodaca

and held that the Sixth Amendment requires

unanimity to convict in state criminal trials. Does

that rule apply retroactively to final convictions?

11

TABLE OF CONTENTS

QUESTION PRESENTED 1.0... ee cceeeeeeeeeeeees 1

TABLE OF CONTENTS... eee ceeeeceeeeeeeeeeeeeeeees 1

TABLE OF AUTHORITIES 1.0... eeeeeeeeeeeeees 111

INTERESTS OF AMICUS CURIAL......0000 ee. 1

STATE OF OREGON 0.0... eecccceseeccceeeeceneeeeeeeaeeees 1

SUMMARY OF ARGUMENT ..... ce eeeeceeeeeees 1

ARGUMENT 0... eecccceeeeccceeeeeeeneeeeceeeeecenaeeeeenaees 4

A. Teague’s retroactivity analysis was designed to

protect the very finality and reliance interests

that are at Stake. ...... ccc cecceeceecceseeesesceseeesseeees 4

B. Ramos announced a new procedural rule that,

under Teague, does not apply retroactively............ 7

1. Ramos overruled Apodaca and announced a

“NEW LULE. .......ccccecceccccecccceccececcececceccccecceseccecenees 8

2. Ramos did not announce a watershed rule.... 12

a. The unanimity rule is not necessary to

prevent an impermissibly large risk of

CYYLONEOUS CONVICTIONS. ...........ccceceeceeceeceececeeeeess 13

b. The unanimity rule did not alter our

understanding of bedrock procedural elements

essential to fairness. ..........cccccc cee ceeceeceeeceecee sees 15

C. Petitioner and amici significantly understate

the potential impact of applying Ramos

LECLOACTIVELY. o.oo cece cece cscs eccecceceecesessceceeseseesesseeees 18

CONCLUSION... ececccceteecceceeeeeeneeeeeneeeeeeas 22

111

TABLE OF AUTHORITIES

Page(s)

Cases Cited

Agostini v. Felton,

521 U.S. 208 (1997) oo. cecceccecceecesceseeseeseeees 10

Allen v. Hardy,

478 U.S. 255 (1986) oo... ccc cece ecceecceeceecesseeseeeseaes 17

Apodaca v. Oregon,

406 U.S. 404 (1972) ooo. cec ccc eeceeeeeeeeee passim

Ballew v. Georgia,

435 U.S. 223 (1978) ooo cecccccecceccescescesseseeseesees 17

Batson v. Kentucky,

A7T6 U.S. 79 (1986) ..... ec cec cece eeccecceeceecesseeeeesceaes 17

Beard v. Banks,

542, U.S. 406 (2004) oo. ceccecceeceeseeeees 11,17

Burch v. Loutstana,

AAI U.S. 180 (1979) ooo cece ecceeceeceeceeseseeeees 17

Butler v. McKellar,

494 U.S. 407 (1990) oo. eccecceeceeceeeeeeeeees 12

Chaidez v. United States,

568 U.S. 342 (2018) oo. cceeccecceeceecesceeseesceeees 8

Chavez v. State,

438 P.3d 381 (Or. 2019)... cee ceeceeceeceeeeeees 21

Crawford v. Washington,

541 U.S. 86 (2004) oo. ccc ceccecceeceeceeeeeeees 11, 15

DeForge v. Blewett,

Umatilla County, Case No. 20CV31210..........0..0.... 7

Gideon v. Wainwright,

372 U.S. 3385 (1968) .... eee eee 13, 15, 16, 17

In re Sanders,

981 P.2d 1038 (Cal. 1999) ooo. ee cece eee e ees 5

Lamorix v. Singletary,

520 U.S. 518 (1997) ooo. ccccecccescceeecceecceseeeeceenes 8

1V

McCleskey v. Zant,

499 U.S. 467 (1991) oo. c eee eeccecceeceeseeeeeeseeees 5

McDonald v. Chicago,

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

McKenzie v. Blewett,

Umatilla County, Case No. 20CV30476.............. 6, 7

Miller v. Alabama,

567 U.S. 460 (2012) ooo. ecceccecceeceeceeceseees 6, 21

Montgomery v. Louisiana,

186 S. Ct. 718 (2016) ooo. cece cece esceeeeeceeeeeees 20

Ohio v. Roberts,

448 U.S. 56 (1980) .... cee cecceeceeceeseeseeees 11, 15

Peyton v. Rowe,

391 U.S. 54 (1969) ooo ceccecceeceecesceeeseeeeeees 6

Ramos v. Loutsiana,

140 8. Ct. 1890 (2020) oo... ec cece ee ees passim

Ring v. Arizona,

536 U.S. 584 (2002) oo... eccecccecceeceeceeeeeseeees 11

Rodriguez de Quijas v. Shearson/American Exp., Inc.,

490 U.S. 477 (1989) ooo. ccceecesccseceeceeseeseeeseaes 10

Rowe v. Peyton,

383 F.2d 709 (4th Cir. 1967)... ee cece eeeees 6

Saffle v. Parks,

494 U.S. 484 (1990) ... ee eeceeceeee ees 8, 12, 15

Schriro v. Summerlin,

542, U.S. 848 (2004) oo. ceccecceccseceeceseeeeeees 11

Solem v. Stumes,

465 U.S. 6388 (1984) ooo. cec cece eeccecceeceeceneeeeseeees 4

State Oul Co. v. Khan,

D522 U.S. 8 (1997) ooo ecc cece ecceeccecceesenseeseeeseseees 10

State v. Gomez,

A1724983 (Or. Ct. App.).....cccccccccccccceceecesceseecseesesseeees 7

State v. Stuart,

A170222 (Or. Ct. App.).....cccccccceccccceceecesceseeseseesesseeees 7

State v. Williams,

No. 15—CR—58698, 2016 WL 11695154 (Or. Cir. Ct.

Dec. 15, 2016) oo... ee cccceccseceecceeceeccsceeeeeceaes 18

Teague v. Lane,

489 U.S. 288 (1989) ooo. ecceceeceeceeeeeeeeee passim

Timbs v. Indiana,

1389 S. Ct. 682 (2019) ooo. eee c cece eeceeeeeseeeenees 10

Tyler v. Cain,

533 U.S. 656 (2001) oo... cee ceccecceeceeceeeeeeseeees 12

United States v. Hatter,

532 U.S. 557 (2001) oo... cece ccc cecceeceeceeseeseseees 10

White v. Premo,

443 P.38d 597 (Or. 2019)... cece cee cee ceeceeeeees 6, 21

Whorton v. Bockting,

549 U.S 406 (2007) ..... cece cc eec eee e ees 7,11, 12, 15

Williams v. Florida,

399 U.S. 78 (1970) oo... cece c eee eee e ees 14, 15, 16, 17

Constitutional and Statutory Provisions

Juries Act 1974, ch. 23, § 17 (Eng.)...... eee 16

Or. Const., Art I, § 42(1)(a).. 0. ceccecceeceeceeeees 5)

Or. Const., Art I, § 42(1)(f)... cece eeceeceeeeeeees 5)

Or. Rev. Stat. § 107.018 0... cecceccecceeceseseeeeees 5)

U.S. Const., Amend. VI............... 1, 3, 10, 11, 13, 15, 17

U.S. Const., Amend. XIV ooo... eee ec eececececeeeeees 11

Uniform Code of Military Justice,

Article 52, codified at 10 U.S.C. § 852.......0.000... 16

Other Authorities

Barbara Lupp1 & Francesco Parisi,

Jury Size and the Hung-Jury Paradox, 42 J. Legal

Stud. 399 (2018) oo... ee ecc cece eeceecceeseecesseeeeeeeees 14

al

Brief of Petitioner-Appellant,

Almanza-Garza v. Amsberry, No. 20-35260 (9th Cir.

July 17, 2020) oo... eecceccseceeceeccseceeseecessesceees 20

Ethan J. Leib,

A Comparison of Criminal Jury Decision Rules in

Democratic Countries, 5 Ohio St. J. Crim. L. 629

(QOO8) ou. .ec cee eec cece eecescceeceeccecceecesceeseescescesseesceseeeeceseees 16

Ethan J. Leib,

Supermajoritarianism and the American Criminal

Jury, 33 Hastings Const. L.Q. 141 (2006)....... 14, 16

Ryan W. Scott,

In Defense of the Finality of Criminal Sentences on

Collateral Review, 4 Wake Forest J.L. & Pol’y 179

(QOVA) ooo cccc cece scceceecccceeccecescesceseeeseenceses 4,5, 7

The National Registry of Exonerations (Map),

available at

https://www.law.umich.edu/special/exoneration/Pag

es/Exonerations-in-the-United-States-Map.aspx.

(last visited Oct. 1, 2020) ....... cece cece eee eeees 14

INTERESTS OF AMICUS CURIAE

STATE OF OREGON

In 1972, this Court held in Apodaca_ that

nonunanimous 11-1 and 10-2 jury verdicts in state

criminal trials do not violate the federal constitution.

In the ensuing 48 years, Oregon relied on Apodaca to

conduct many thousands of felony jury trials, with a

uniform instruction telling jurors that ten or more of

them must agree to the verdict. In April 2020, this

Court in Ramos overruled Apodaca and held that

unanimity is required. As a result, hundreds of cases

on direct appeal will be retried. The issue in this

case, however, 1s whether Ramos also applies

retroactively to the much larger number of cases that

may be subject to collateral review.

Oregon has a compelling interest in the finality of

its convictions. Retroactive application of new rules

has a= significant impact on crime victims and

requires retrials years after the fact when key

evidence may be gone. Oregon thus has a direct

interest in the issue here, which could undermine the

finality of an enormous number of convictions and

seriously strain its criminal justice system.

SUMMARY OF ARGUMENT

Under Teague v. Lane, 489 U.S. 288 (1989), a new

constitutional rule of criminal procedure does not

apply on collateral review unless it is a “watershed

rule.” A “watershed rule” is a rule without which the

likelihood of an accurate conviction is seriously

diminished, a standard that is “demanding by

design,” so demanding that the Court has never

“announce[d] a new rule of criminal procedure

2

capable of meeting it.” 140 8. Ct. at 1407 (plurality

opinion). The Ramos plurality noted that Teague’s

analysis is “expressly calibrated to address the

reliance interests States have in the finality of their

criminal judgments.” Id. Teague thus “free[d]’ the

Court to overrule Apodaca, “while leaving questions

about the reliance interest States possess in their

final judgments” for another day in a proceeding

“crafted to account for them.” Id.

That day has arrived. This Court must now

“rightly take into account the States’ interest in the

finality of their convictions.” Jd. Retroactive

application of Ramos would frustrate the states’

finality interests in their criminal convictions and

their reliance on Apodaca—a_ decision that

specifically upheld Oregons’ rule _ allowing

nonunanimous verdicts.

The two-part Teague framework confirms that the

unanimity rule announced in Ramos does not apply

retroactively on collateral review.

First, Ramos is a “new” rule. Ramos overruled

Apodaca’s holding that the federal constitution does

not require unanimity in state felony trials. A rule

that can be established only by overruling precedent

is necessarily new under Teague because it 1s not

“dictated by precedent.” Petitioner's contrary

argument—that Apodaca was never precedent—

mistakenly conflates horizontal stare decisis with

vertical stare decisis. Lower courts were bound by

Apodaca, and, at a minimum, reasonable jurists could

conclude as much. That is all that Teague requires

for a rule to be “new.”

=)

Second, Ramos is not a watershed procedural

rule. Ramos overruled Apodaca not because jury

unanimity is required to be confident in the accuracy

of convictions, but based on the Court's

understanding of what the Framers intended when

they adopted the Sixth Amendment. Nor did Ramos

alter our understanding of bedrock procedural

elements essential to fairness. It was an incremental

decision in a line of cases involving jury size and

unanimity.

A holding that Ramos applies on collateral review

would have a dramatic impact on Oregon’s criminal

justice system. In _ addition to cases’ with

nonunanimous' verdicts, some defendants are

challenging unanimous verdicts, or cases in which the

jury was not polled, on the theory that the ten-ormore-jurors instruction was a structural error. To

date, over six hundred Oregon defendants on direct

appeal have raised Ramos challenges, and that

number grows every week. Retroactive application of

Ramos to collateral review cases would call into

question Oregon convictions spanning more than 80

years. For nearly 50 of those years, Oregon’s criminal

justice system was operating under the precedent of

this Court’s decision in Apodaca. This Court should

apply its well-established precedent to hold that

Ramos is not retroactive.

4

ARGUMENT

A. Teague’s’ retroactivity analysis was

designed to protect the very finality and

reliance interests that are at stake.

The Court repeatedly has recognized that applying

new rules on collateral review “seriously undermines

the principle of finality which is essential to the

operation of our criminal justice system.” Teague,

489 U.S. at 309. The “costs imposed upon the State

by retroactive application of new _ rules. of

constitutional law” after a conviction is final on direct

appeal “generally far outweigh the benefits of this

application.” Solem v. Stumes, 465 U.S. 638, 654

(1984) (Powell, J., concurring). To that end,

established retroactivity principles give broad effect

to a new rule for cases on direct appeal, but protect

the state’s finality and reliance interests by

precluding retroactive application to cases on

collateral review.

The interest in the finality of convictions is

srounded in practical concerns: the need for closure,

the potential for loss of evidence, and the limits on

public resources. See, e.g., Ryan W. Scott, In Defense

of the Finality of Criminal Sentences on Collateral

Review, 4 Wake Forest J.L. & Poly 179, 185 (2014)

[Scott, Collateral Review] (dentifying the primary

considerations as “the costs of relitigation, the

accuracy of new proceedings, and the damage to the

reputation of the criminal justice system’).

Closure. The need for a conclusive resolution to

cases is tied to the legitimacy of any criminal justice

system. “One of the law’s very objects is the finality

»)

of its judgments.” McCleskey v. Zant, 499 U.S. 467,

491 (1991). That objective is particularly important

in criminal law because “[n]Jeither innocence nor just

punishment can be vindicated until the final

judgment is known.” Id. “Without finality, the

criminal law is deprived of much of its deterrent

effect.” Teague, 489 U.S. at 309.

Closure is especially important to crime victims.

In Oregon, a crime victim has constitutional and

statutory rights in criminal proceedings. See, e.g., Or.

Const., Art I, § 42(1)(a), (f) (creating right for victims

to attend proceedings and be consulted about plea

negotiations); Or. Rev. Stat. § 107.0138 (creating right

for victims to appear at sentencing). One “cannot

overestimate the value of the psychological repose

that may come for the victim, or the surviving family

and friends of the victim, generated by the knowledge

the ordeal is finally over.” In re Sanders, 981 P.2d

1038, 1042 (Cal. 1999). A victim who has finally

found peace many years after being told that a

conviction is final is, in a sense, victimized anew by

learning that the legal system has opted to reopen the

case many years after the trial was conducted.

Loss of evidence. Finality promotes accuracy,

because the factual record at the original trial is

likely to be more accurate than the record at any

retrial. The passage of time generally results in the

loss of at least some evidence. “[O]ver time,

memories fade, evidence spoils, and witnesses die or

otherwise become unavailable.” Scott, Collateral

Review, at 186. That problem is especially acute if

years, or even decades, have passed. In Oregon,

criminal defendants can seek post-conviction relief

6

based on new rules of constitutional law long after

the conviction. See, e.g., White v. Premo, 443 P.3d

597, 603 (Or. 2019) (allowing petition challenging 24-

year-old murder conviction based on Miller v.

Alabama, 567 U.S. 460 (2012)); Mckenzie v. Blewett,

Umatilla County, Case No. 20CV30476 (Gnvoking

Ramos and challenging 41-year-old conviction). “The

sreater the lapse of time, the more unlikely it

becomes that the state could reprosecute if retrials

are held to be necessary.” Peyton v. Rowe, 391 U.S.

54, 62 (1969) (quoting Rowe v. Peyton, 383 F.2d 709,

715 (4th Cir. 1967)). Particularly when a case

involves violent crimes and lengthy sentences, the

difficulty in retrying the case years after the fact

jeopardizes public safety.

The application of a “new” procedural rule—one

announced after the conviction is_ final—is

particularly problematic in collateral challenges

because “no one might have paid attention to the

relevant facts during the original proceedings.” Id.

That is the case here because, before Ramos, many

juries in Oregon were not polled to determine

unanimity and, even if they were, the records of the

polls may be lost. In those cases, the record would

show only that a nonunanimous instruction was

siven that might have led to a nonunanimous verdict.

Far from increasing confidence in the accuracy of

proceedings, requiring a state to retry criminal cases

potentially decades after the fact risks significantly

diminished accuracy.

Public resources. Teague was concerned about

“continually forc[ing] the States to marshal resources

in order to keep in prison defendants whose trials and

7

appeals conformed to then-existing constitutional

standards.” 489 U.S. at 310 (emphasis in original).

In Oregon, defendants are invoking Ramos to

challenge convictions where the jury was unanimous,

where the jury was not polled, and even where

defendants waived a jury trial and the conviction was

based on a guilty plea or bench trial. See, e.g., State

v. Stuart, A170222 (Or. Ct. App.) (using Ramos to

challenge jury-trial waiver that preceded court trial);

State v. Gomez, A172493 (Or. Ct. App.) (same);

McKenzie v. Blewett, Umatilla County, Case No.

20CV30476 (using Ramos to challenge guilty plea);

DeForge v. Blewett, Umatilla County, Case No.

20CV31210 (same). The breadth of the challenges

being brought by Oregon defendants—unanimous

juries, nonunanimous juries, unpolled juries, even

cases with no jury due to plea or defendant’s election

of a bench trial—illustrates the potential impact if

Ramos applies to final convictions. “Respect for

finality helps to conserve the scarce public resources

avallable to the criminal justice system.” Scott,

Collateral Review at 186.

B. Ramos announced a new procedural rule

that, under Teague, does not apply

retroactively.

Under Teague, a “new” procedural rule does not

apply retroactively to cases on collateral review

unless it is a “watershed rulfe]” that implicates “the

fundamental fairness and accuracy of the criminal

proceeding.” Whorton v. Bockting, 549 U.S 406, 416

(2007) (Gnternal quotation marks omitted). The

Ramos rule is a new procedural rule and does not fall

within the watershed-rule exception.

8

1. Ramos overruled Apodaca and

announced a “new” rule.

“[A] case announces a new rule when it breaks

new ground or imposes a new obligation” on the

sovernment. Teague, 489 U.S. at 301. Stated

differently, “a case announces a new rule if the result

was not dictated by precedent existing at the time the

defendant's conviction became final.” Jd. (emphasis

in original). And a holding is not so dictated unless it

would have been “apparent to all reasonable jurists.”

Chaidez v. United States, 568 U.S. 342, 347 (20138)

(emphasis added) (quoting Lambrix v. Singletary, 520

U.S. 518, 527-28 (1997)). Although that

determination may be difficult if a case merely

extends the reasoning from prior cases, the question

is easy to answer here because “the explicit

overruling of an earlier holding no doubt creates a

new rule.” Saffle v. Parks, 494 U.S. 484, 488 (1990).

Ramos overruled Apodaca and, thus, necessarily

announced a new rule.

Petitioner tries to avoid that conclusion by arguing

that Apodaca was never precedent in the first place.

Pet. Br. 12-22. In Ramos, three justices concluded

that Apodaca did not supply a “governing precedent”

that would “bind this Court,” because Apodaca turned

on Justice Powell’s fifth vote, which was based “on a

dual-track theory of incorporation that a majority of

the Court had already rejected (and continues to

reject).”. Ramos, 140 S. Ct. at 1402 (plurality

opinion). Petitioner argues that that conclusion also

necessarily means that Apodaca was not “precedent”

for purposes of Teague. Pet. Br. 20.

9

Petitioner’s theory is flawed for two basic reasons.

First, the plurality’s view of Apodaca’s precedential

value was rejected by a majority of the Court. See

Ramos, 140 8. Ct. at 1420 n. 10 (Kavanaugh J.,

concurring) (“It appears that six Justices of the Court

treat the result in Apodaca as a precedent... ”).

Second, even the three justices in the plurality who

did not view Apodaca as binding recognized that the

Court was announcing a new rule for Teague’s

purposes. The plurality emphasized that “worries”

that the Ramos rule would be retroactive on collateral

review “outstrip[ped] the facts” because “under

Teague, newly recognized rules of criminal procedure

do not normally apply in collateral review.” Ramos,

140 8. Ct. at 1407 (plurality opinion).

More fundamentally, petitioner conflates

horizontal stare decisis with vertical stare decisis.

Horizontal stare decisis 1s “the respect that this Court

owes to its own precedents and the circumstances

under which this Court may appropriately overrule a

precedent.” 140 8S. Ct. at 1416 n.5 (Kavanaugh, J.,

concurring). That was the central concern of the

debate in Ramos. The _ three-justice plurality

concluded that, because Apodaca turned on a theory

of incorporation that had already been rejected, it

should not “bind this Court” and was not entitled to

any stare decisis protection. Ramos, 140 8S. Ct. at

1402—04 (plurality opinion) (emphasis added).

In contrast, the Teague analysis here turns on

vertical stare decisis, which is the principle that “the

state courts and the other federal courts have a

constitutional obligation to follow a precedent of this

Court unless and until it is overruled by this Court. ”

10

140 S. Ct. at 1416 n.5 (Kavanaugh, J., concurring).

Until it was overruled, Apodaca was binding on statecourt judges regardless of whether the decision

“appear[ed] to rest on reasons rejected in some other

line of decisions.” Agostini v. Felton, 521 U.S. 208,

237 (1997). As the Court has repeatedly reminded

lower courts, only the Court may overrule one of its

decisions. See United States v. Hatter, 532 U.S. 557,

567 (2001); State Oil Co. v. Khan, 522 U.S. 3, 20

(1997); Rodriguez de Quijas v. Shearson/American

Exp., Inc., 490 U.S. 477, 484 (1989). So even if the

three justices were correct that Apodaca was not

binding precedent on this Court, it certainly bound

state courts. State courts could not have relied on the

same considerations that this court relied on in

Ramos to overrule Apodaca themselves.

For the same reason, petitioner is wrong that

Ramos was dictated by then-existing precedent

establishing that incorporated rights applied equally

against the states. Apodaca established an exception

to that rule that was binding on lower courts and that

continued to be binding until the Court overruled

Apodaca in Ramos. See McDonald v. Chicago, 561

U.S. 742, 766 n.14 (2010) (citing Apodaca for the

proposition that the Sixth Amendment “does not

require a unanimous jury verdict in state criminal

trials’); Timbs v. Indiana, 139 8. Ct. 682, 687 n.1

(2019) (citing Apodaca and stating that “[t]he sole

exception [to its incorporation doctrine] is [the

Court's] holding that the Sixth Amendment requires

jury unanimity in federal, but not state, criminal

proceedings’).

11

Still, petitioner suggests Ramos is not “new”

because its rule and analysis is grounded in history

and longstanding incorporation precedent. But the

benchmark for assessing whether Ramos is “new” is

not the original meaning of the Sixth and Fourteenth

Amendments or the vintage of its supporting

authorities. Instead, the benchmark is_ the

constitutional interpretation in effect “when the

defendant’s conviction became final.” Beard v. Banks,

542 U.S. 406, 411 (2004). Apodaca was _ the

constitutional interpretation in effect when

petitioner’s conviction was final. The fact that Ramos

not only overruled Apodaca but also replaced it with a

rule that fully restored the common-law unanimity

requirement and that comported with decades-old

incorporation precedent does not make Ramos any

less new. See generally Schriro v. Summerlin, 542

U.S. 348, 352-53 (2004) (assuming that the jury-trial

rule announced in Ring v. Arizona, 5386 U.S. 584

(2002), which was a return to the _ original

understanding of the Sixth Amendment, was new).

Precedent confirms that conclusion. In Crawford

v. Washington, 541 U.S. 36 (2004), the Court

announced a Sixth Amendment confrontation rule

that returned the doctrine to the Framer’s original

understanding. Yet Crawford was new because the

Court had to overrule Ohio v. Roberts, 448 U.S. 56

(1980), to announce it and because, prior to Crawford,

state courts “could have reached the conclusion that

the Roberts rule” governed. Whorton, 549 U.S. at

416-17. The same holds true here. Ramos is new

because the Court had to overrule Apodaca and

because, prior to Ramos, reasonable jurists could and

12

would have concluded that Apodaca governed. See

Butler v. McKellar, 494 U.S. 407, 412 (1990) CA new

decision that explicitly overrules an earlier holding

obviously ‘breaks new ground’ or ‘imposes a new

[governmental] obligation.”’).

2. Ramos did not announce a watershed

rule.

Because Ramos announced a new procedural rule,

it does not apply on collateral review unless it is a

“watershed rule of criminal procedure implicating the

fundamental fairness and accuracy of the criminal

proceeding.” Whorton, 549 U.S. at 416 (2007)

(quoting Saffle, 494 U.S. at 495). The exception for

watershed procedural rules is “extremely narrow’ —

so narrow, in fact, that it is “unlikely” that any such

rule has “yet to emerge.” Jd. at 417 (nternal

quotation marks omitted). In the years since Teague,

the Court has “rejected every claim that a new rule

satisfied the requirements for watershed status.” Id.

at 418 (citing examples).

To qualify as watershed, a new rule must meet

two requirements. First, the rule must be “necessary

to prevent an ‘impermissibly large risk’ of an

inaccurate conviction.” Jd. (quoting Summerlin, 542

U.S. at 356; citing Tyler v. Cain, 533 U.S. 656, 665

(2001)). Second, the rule must “alter our

understanding of the bedrock procedural elements

essential to the fairness of a proceeding.” Jd. By both

measures, the unanimity rule announced by Ramos

falls short.

13

a. The unanimity rule is not necessary

to prevent an impermissibly large

risk of erroneous convictions.

To determine whether a rule creates an

“impermissibly large risk” of an inaccurate conviction,

this Court asks whether the prior rule is “so much

more unreliable” than the new rule that the new rule

is “one without which the likelihood of an accurate

conviction is seriously diminished.” Id. at 420

(emphasis in original). The standard is so demanding

that no new rule other than the right to counsel

announced by Gideon v. Wainwright, 372 U.S. 335

(1963), has met it.

The Apodaca rule—which allowed supermajority

suilty verdicts—did not create an impermissibly large

risk of erroneous convictions. In arguing to the

contrary, petitioner and amici invoke studies of jury

dynamics under different decisional rules. Pet. Br.

28—29; Law Professors and Social Scientists Br. at 4—

12. But Ramos repudiated the resort to the results of

social science as a criterion for interpreting the Sixth

Amendment; as the Court explained, the problem

with Apodaca is not that the plurality bungled the

cost-benefit analysis based on social science, but that

it “subjected the ancient guarantee of a unanimous

jury verdict to its own functionalist assessment in the

first place.” Ramos, 140 8. Ct. at 1401.

But to the extent that social science bears on

whether the rule greatly improves accuracy, studies

suggest that “[the] outcomes of verdicts do not

significantly vary with decision rule.” Ethan J.

Leib, Supermajoritarianism and the American

Criminal Jury, 33 Hastings Const. L.Q. 141, 144 & n.

14

10 (2006) (collecting studies). Nor do data about

erroneous convictions establish that nonunanimous

verdict rules lead to more erroneous convictions than

unanimous verdict rules; the rate of exonerations in

Oregon is below the national average. See generally

The National Registry of Exonerations (Map),

avatlable at

https://www.law.umich.edu/special/exoneration/Pages

/Exonerations-in-the-United-States-Map.aspx. (last

visited Oct. 1, 2020).

The rule from Williams v. Florida, 399 U.S. 78

(1970), which permitted convictions based on verdicts

by six-member juries, further confirms that the

Apodaca rule does not seriously undermine accuracy.

Many jurisdictions permit juries with fewer than 12

members in criminal cases. “A total of 11 states

currently use juries composed of fewer than 12 jurors

in felony and misdemeanor trials” and “[a]n

additional 29 states allow juries of fewer than 12 in

misdemeanor cases[.]” Barbara Luppi & Francesco

Parisi, Jury Size and the Hung-Jury Paradox, 42 J.

Legal Stud. 399, 402 (2018) (citing 2004 statistics). It

may be debatable which rule is more protective

against an inaccurate conviction: a_ six-person

unanimous rule or a 12-person nonunanimous rule

that would require 10 or more jurors to agree to

convict. But, at a minimum, the jury-size rule from

Williams demonstrates that 12 unanimous votes to

convict is not the sole measure of a _ reliable

conviction.

Equally important, the basis for the decision in

Ramos was not a broad concern about improving

accuracy over the Apodaca rule. Rather, the basis

15

was history—and, in particular, what jury-verdict

rule the Framers intended when they adopted the

Sixth Amendment. In that sense, the Ramos

approach to the Sixth Amendment is broadly the

same as Crawford’s approach to the Confrontation

Clause, one based on what the Framers intended

rather than an inquiry into which rule would lead to

more accurate convictions: “Crawford overruled

Roberts because Roberts was inconsistent with the

original understanding of the meaning of the

Confrontation Clause, not because the Court reached

the conclusion that the overall effect of the Crawford

rule would be to improve the accuracy of factfinding

in criminal trials.” Whorton, 549 U.S. at 419. Ramos

is no different.

b. The unanimity rule did not alter our

understanding of bedrock procedural elements essential to fairness.

To qualify as a “watershed” rule, “a new rule must

itself constitute a previously unrecognized bedrock

procedural element that is essential to the fairness of

a proceeding.” Whorton, 549 U.S. at 421. In that

respect, the rule must be like the rule announced by

Gideon—evincing “primacy” and “centrality.” Id.

(quoting Saffle, 494 U.S. at 495). The Ramos rule

does not meet those requirements.

First, the Ramos rule leaves untouched the

validity of unanimous verdicts involving fewer than

12 votes for guilt. As explained above, Williams

permits convictions for serious offenses based on a

verdict returned by at least six jurors, and a majority

of states permit convictions for serious offenses based

on juries smaller than 12. The same 10-2 verdicts in

16

a 12-member jury that Ramos would prohibit would

be lawful if the jury had only the 10 concurring

members. The Williams rule shows that the

agreement of 12 jurors is not the only criterion of

fairness.

Second, if a nonuanimous jury rule were

fundamentally unfair, it would not be the prevailing

rule of decision in courts’ martial, foreign

jurisdictions’ criminal trials, or state civil trials. Yet

the Uniform Mililitary Code of Justice permits

nonuanimous guilty verdicts in courts martial. See

Uniform Code of Military Justice, Article 52, codified

at 10 U.S.C. § 852 (permitting conviction by a threefourths supermajority for noncapital crimes). Other

countries, including England, permit nonunanimous

verdicts even in criminal cases. See Juries Act 1974,

ch. 23, § 17 (Eng.); see also Ethan J. Leib, A

Comparison of Criminal Jury Decision Rules in

Democratic Countries, 5 Ohio St. J. Crim. L. 629, 635

(2008) (examining decision rules in- various

democratic countries and finding that Australia,

Belgium, France, Scotland, and Wales, among other

countries, permit nonunanimous verdicts in criminal

cases under certain conditions). And several states

permit nonunanimous verdicts in civil cases. See

Ethan J. Leib, Supermajoritarianism and_ the

American Criminal Jury, 33 Hastings Const. L.Q.

141, 196, n.9 (2006) (citing National Center for State

Courts, Jury Decision-Making FAQs).

Finally, the Ramos rule comes nowhere near the

centrality and primacy of Gideon, the only rule that

the Court has identified to be a watershed procedural

rule. By providing criminal defendants with access to

17

a qualified advocate to contest the government in

court, Gideon introduced a “sweeping” and

“fundamental” change to the nature of adversarial

criminal proceedings. Beard, 542 U.S. at 418. And it

did so in all felony cases across all jurisdictions.

Ramos, in contrast, represents an incremental

decision in a line of cases involving jury size and

unanimity. It can be traced at least back to Williams,

which held that the Sixth Amendment allows states

to use six-member juries for serious crimes. Apodaca

was next and held that states could permit 11-1 and

10-2 supermajority guilty verdicts. Ballew v. Georgia,

435 U.S. 223 (1978), then held that the Sixth

Amendment did not allow states to use a five-member

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

added that, if a state permits a six-member jury, the

jury must be unanimous. And Ramos revisited and

overruled Apodaca and extended the unanimity rule

from Burch to a 12-person jury. Though that change

may make it slightly harder for a state to secure a

criminal conviction, it 1s not a dramatic shift in the

fairness of a trial.

Petitioner and amici argue that nonunanimous

jury rules were adopted in part from discriminatory

motivations and suggest that the rule itself therefore

must be fundamentally unfair. Pet. Br. 37-38. But

the cases on which petitioner relies—for example,

Batson v. Kentucky, 476 U.S. 79 (1986)—have not

created rules that this Court applied retroactively to

collateral review. See Ramos, 140 S. Ct. at 1420

(Kavanaugh, J., concurring) (noting that Allen v.

Hardy, 478 U.S. 255, 261 (1986) (per curiam), rejected

retroactivity for Batson). In any event, the question

18

whether Ramos announced a watershed procedural

rule does not turn on the motives of those who

enacted the nonunanimous jury rule.

Moreover, a determination that Ramos is not a

watershed procedural rule would not prevent other

challenges alleging that a nonunanimity rule was

discriminatory in its origins and effects. Criminal

defendants have been, and remain, free to bring an

equal protection challenge if they can establish the

factual predicate for such a challenge. See State v.

Williams, No. 15-CR-58698, 2016 WL 11695154 (Or.

Cir. Ct. Dec. 15, 2016) (concluding that the defendant

had not proven that Oregon’s rule violated equal

protection), affd, 441 P.38d 710 (Or. App. 2019), reud

on other grounds, 466 P.3d 55 (Or. 2020). For those

reasons, petitioner identifies no basis for concluding

that Ramos is a watershed procedural rule.

C. Petitioner and amici _— significantly

understate the potential impact of

applying Ramos retroactively.

Petitioner and Amici Curiae Federal Public

Defender for the District of Oregon and the Oregon

Criminal Defense Lawyers Association (“Oregon

Defense Bar’) appear to suggest that only cases with

nonunanimous verdicts could “potentially require[]”

litigation in collateral review. Oregon Defense Bar

Amicus Br. 4; see also Pet. Br. 36-37. But cases that

have already been filed show that the ltigation will

not be so limited.

In Oregon, the defense bar is regularly arguing

that all convictions require reversal on direct appeal

where the jury was instructed that it could return a

19

nonunanimous verdict, regardless of whether the

verdict was in fact unanimous. The Oregon Supreme

Court has granted discretionary review in five cases

to decide whether Aamos requires reversal of

convictions based on verdicts that were unanimous

and convictions for which there was no jury poll.

State vu. Kincheloe (S067611); State v. Ramos

(S067105); State v. Ciraulo (S067569); State v.

Chorney-Phillips (S067557); State ov. Dtlallo

(S067493). Defendants are even invoking Ramos to

challenge the jury-trial waivers that preceded their

court trials. See, e.g., State v. Stuart, A170222 (Or.

Ct. App.) Gnvoking Ramos to challenge jury-trial

waiver that preceded court trial); State v. Gomez,

A172493 (Or. Ct. App.) (Same). To date, over six

hundred defendants have raised Ramos challenges,

and that number continues to grow every week.

The existence of these direct-review cases

undercuts the Oregon Defense Bar’s suggestion that

the direct-appeal ltigation is essentially over and

that the only cases that require reversal are 276 cases

for which the state conceded error in May 2020. That

number represents merely the _ state’s_ initial

concessions for cases with a nonunanimous guilty

verdict. The state already has conceded error in

many more cases and will continue to do so for quite

some time given the time lag between trial and the

filing of a responsive brief on appeal. And the Oregon

Defense Bar’s brief neglects to mention that

defendants are also challenging convictions based on

unanimous verdicts or no-poll verdicts. Amici are

wrong to suggest that the direct-appeal fallout has

been minimal.

20

Challenges on collateral review, including federal

challenges, also already go beyond cases that actually

involved a nonunanimous jury. See Brief of

Petitioner-Appellant, Almanza-Garza v. Amsberry,

No. 20-35260 (9th Cir. July 17, 2020) (challenging

unanimous conviction under Ramos structural-error

theory). Indeed, the Oregon Defense Bar explains

that defendants who were convicted based on

unanimous verdicts are filing successive state postconviction petitions and seeking to file federal habeas

petitions. Oregon Defense Bar Br. 6. And petitioners

are invoking Ramos to challenge court-trial and

suilty-plea convictions on collateral review. See e.g.,

Oregon Defense Bar Br. 6 (referencing those claims);

McKenzie v. Blewett, Umatilla County, Case No.

20CV30476 (raising guilty-plea challenge); DeForge v.

Blewett, Umatilla County, Case No. 20CV31210

(same); Nichelson v. Blewett, Umatilla County, Case

No. 20CV29479 (raising court-trial challenge); White

v. Cain, Malheur County Case, No. 20CV31757

(same).

Suggestions that litigation will be confined to

convictions based on nonunanimous verdicts are

simply incorrect. As the state has noted from the

beginning, potentially thousands of convictions are at

stake.

Indeed, if Ramos is retroactive on collateral

review, all defendants could attempt to challenge

their final convictions in state post-conviction

proceedings. See Montgomery v. Louisiana, 136 S. Ct.

718, 728-29 (2016) (holding that state courts must

apply rules that are retroactive under Teague in state

post-conviction proceedings if they are new

21

substantive rules but leaving open whether new

watershed procedural rules must be applied

retroactively). Unlike federal habeas relief, state

post-conviction relief in Oregon is not limited to

persons in custody. And although there is a statute of

limitations for state post-conviction proceedings,

Oregon’s statute allows late or successive petitions

when they are based on legal theories that could not

reasonably have been raised sooner, even if the

challenged convictions are decades old. See Chavez v.

State, 438 P.3d 381, 387 (Or. 2019) (observing that, in

Oregon, a_ state post-conviction petition is not

untimely when it involves a claim that could not

“reasonably could have been raised” within two years

of the date that the conviction became final); White,

443 P.3d at 603 (allowing petition challenging 24-

year-old murder conviction based on Miller). The

federal district court also has been staying federal

habeas actions to enable petitioners to return to state

court in Oregon to litigate state post-conviction

Ramos claims.

The Oregon Defense Bar suggests that the Court

should assume that the bulk of Ramos collateralreview claims have already been filed, which they

appear to estimate at 65 cases. Yet the ink is barely

dry on Ramos, and convicted persons presumably will

have every reason to seek collateral relief to challenge

their convictions. The current number of collateralreview cases is thus likely the tip of the iceberg. But

to the extent the current number of Ramos collateralreview cases is a preview of what is to come, it is far

ereater than amicus’ suggests. The Oregon

Department of Justice (which handles only some of

22

the collateral challenges to convictions) has already

received over 230 state post-conviction and federalhabeas petitions with Ramos claims. And in a recent

seven-week period alone (August 10, 2020, through

September 30, 2020), there were a total of roughly

125 state post-conviction relief Ramos claims filed.

Petitioner also highlights that the state may not

elect to retry every defendant. Pet. Br. 37-38. True

enough, but that is not a point in petitioner’s favor.

The state may choose not to retry cases because of

evidence lost to time (even in the most serious cases)

or because of a lack of resources, not because of

doubts about the merits. Retroactivity principles

account for those very concerns.

CONCLUSION

This Court should affirm the judgment of the Fifth

Circuit.

Respectfully submitted,

ELLEN F’. ROSENBLUM

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

DouG M. PETRINA

CHRISTOPHER A. PERDUE

Assistant Attorneys General

1162 Court Street NE

Salem, Oregon 97301-4096

Phone: (508) 378-4402

benjamin.gutman@doj.state.or.us