Petition for Writ of Certiorari — Nelson Daniel Centeno, Petitioner v. Commonwealth of Puerto Rico

Supreme Court briefApr 28, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------NELSON DANIEL CENTENO,

Petitioner,

v.

PEOPLE OF PUERTO RICO,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Puerto Rico

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------LINDA BACKIEL

267 C. Sierra Morena

PMB 597

San Juan, Puerto Rico 00926

(787) 751-4941

lbackiel@gmail.com

RACHEL BRILL

Counsel of Record

163 Domenech Avenue

San Juan, Puerto Rico 00918

(787) 753-6131

Rabrill@gmail.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does this Court’s decision in Ramos v. Louisiana, 590

U.S. ___, 140 S.Ct. 1390 (2020) bar Puerto Rico from

continuing to authorize non-unanimous acquittals?

ii

PARTIES TO THE PROCEEDING

Nelson Daniel Centeno, petitioner on review, was

the respondent-appellee below.

The People of Puerto Rico, respondent on review,

was the petitioner-appellant below.

RELATED PROCEEDINGS

The following proceedings are directly related to this

case:

The People of Puerto Rico v. Nelson Daniel Centeno,

2021 PRSC 133 (2021), 108 PR Offic. Trans. ___ (2021),

September 9, 2021, Reconsideration denied, November

2, 2021; Second Reconsideration denied, December 13,

2021.

The People of Puerto Rico v. Nelson Daniel Centeno,

KLCE202100016, Comm. of Puerto Rico, Court of Appeals, March 31, 2021.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDING ......................

ii

RELATED PROCEEDINGS ................................

ii

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

vi

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

2

PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS .....................................

2

INTRODUCTION ................................................

5

STATEMENT .......................................................

7

A.

B.

C.

D.

Legal Background: Puerto Rico’s Constitution and Trial by Jury................................

7

The Proceedings Below: The Prosecution

Argues Ramos Requires Unanimous Acquittals .......................................................

9

The Trial Court and Court of Appeals Reject that Argument ....................................

9

Puerto Rico’s Supreme Court Rules that

Ramos Mandates Unanimity for Acquittal..... 11

REASONS FOR GRANTING THE PETITION .....

I.

12

THIS PETITION PRESENTS AN IMPORTANT QUESTION OF FEDERAL

CONSTITUTIONAL LAW THAT THIS

COURT HAS NOT ADDRESSED.............. 12

iv

TABLE OF CONTENTS – Continued

Page

A. This question was not before this

Court in Ramos, which was limited to

correcting a discriminatory deprivation of Sixth Amendment rights .......... 12

B. This is an issue of unusual public importance ............................................... 14

C. Ramos establishes a rule of criminal

procedure, not a constitutional mandate reaching beyond its clear holding

to invalidate constitutional provisions

permitting acquittals ........................... 15

D. The decision below creates a direct

conflict with the highest court of a

state ..................................................... 15

E. This case is the perfect vehicle for resolution of the conflict, and the issue ..... 17

II.

THE DECISION BELOW IS WRONG ...... 18

CONCLUSION..................................................... 22

CONTENTS OF THE APPENDIX

APPENDIX A

Resolution Denying Second Motion to Reconsider December 13, 2021 (certified translation)..........................................................................1a

APPENDIX B

Resolution Denying First Motion to Reconsider

November 1, 2021 (certified translation) ................4a

v

TABLE OF CONTENTS – Continued

Page

APPENDIX C

Judgment and Opinion of the Puerto Rico

Supreme Court September 9, 2021 (certified

translation) ..............................................................9a

APPENDIX D

Judgment and Opinion of the Puerto Rico

Court of Appeals (Fajardo Region) of March

31, 2021 (certified translation) .............................92a

APPENDIX E

Judgment of the Puerto Rico Court of First

Instance, Fajardo Division of December 3,

2020 (certified translation) ...............................123a

APPENDIX F

Pueblo v. Torres Rivera [II], 204 D.P.R. 288,

104 PR Offic. Trans. 22 (2020) ............................139a

vi

TABLE OF AUTHORITIES

Page

CASES

Apodaca v. Oregon,

406 U.S. 404 (1972) .................................................18

Balzac v. Porto Rico,

258 U.S. 298 (1922) ............................................. 6, 21

Boumediene v. Bush,

553 U.S. 723 (2008) .................................................13

Edwards v. Vannoy,

___ U.S. ___, 141 S.Ct. 1547 (2021) .........................15

Fournier v. González,

269 F.2d 26 (1st Cir. 1959) ........................................8

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................................7

Marshall v. Perez Arzuaga,

828 F.2d 845 (1st Cir. 1987) ....................................19

Patton v. United States,

281 U.S. 276 (1930) .................................................19

Pueblo v. Torres-Rivera,

204 D.P.R. ___, 2020 TSPR 42 (May 8, 2020) ...........8

Pueblo v. Diaz Bonanano,

176 D.P.R. 601, 76 PR Offic. Trans. 37 (2009) ........10

Puerto Rico v. Sanchez Valle,

579 U.S. 59 (2016) ............................................... 8, 13

Ramos v. Louisiana,

590 U.S. ___, 140 S.Ct. 1390 (2020) ................ passim

Reid v. Covert,

354 U.S. 1 (1957) .....................................................13

vii

TABLE OF AUTHORITIES – Continued

Page

State v. Martineau,

317 Or. Ct. App. 590 (2022) .....................................16

State v. Patino-Ochoa,

316 Or. Ct. App. 478 (Ct. App. 2021) .......................16

State v Ross,

367 Or. 560, 481 P.3d 1286 (2021) .... 7, 10, 12, 16, 18

State v. Scott,

311 Or. Ct. App. 175 (Ct. App. 2021) .......................16

Timbs v. Indiana,

586 U.S. ___, 139 S.Ct. 45 (2018) ............................13

Torres v. Delgado,

510 F.2d 1182 (1st Cir. 1975) ....................................8

United States v. Vaello Madero,

596 U.S. ___ (2022), 2022 WL 1177499 ........... 5, 6, 13

Williams v. Florida,

399 U.S. 78 (1970) ...................................................14

UNITED STATES CONSTITUTION

Art. III, Sec. 2, cl. 3 ................................................... 2, 7

Amendment V ...............................................................3

Amendment VI.................................................... passim

Amendment XIV ...........................................................3

CONSTITUTION OF PUERTO RICO

Art. II, § 7 ......................................................................4

Art. II, § 11 ................................................................ 4, 8

viii

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1258 ............................................................2

34 L.P.R.A. App. II, Rule 112 ........................................5

O.R.S. 136.450 .............................................................16

RULES

Fed. R. Crim. P. 31 ......................................................18

OTHER AUTHORITIES

Adams, John, at “Founders Online:

Adams’ Argument for the Defense: 3-4 December 1770,” https://founders.archives.gov/

documents/Adams/05-03-02-0001-0004-0016 ........19

Helfeld, David

How Much of the United States Constitution

and Statutes are Applicable to the Commonwealth of Puerto Rico?.............................................14

110 F.R.D. 449 (1985)

Gelpi, Gustavo A.

The Insular Cases: A Comparative Historical Study of Puerto Rico, Hawai’i, and the

Philippines,

58 THE FEDERAL LAWYER 22 (Mar./Apr. 2011) ..... 19, 20

1

No. 21-________

---------------------------------♦---------------------------------

In The

Supreme Court of the United States

---------------------------------♦---------------------------------

NELSON DANIEL CENTENO,

Petitioner,

v.

PEOPLE OF PUERTO RICO,

Respondent.

---------------------------------♦---------------------------------

On Petition For A Writ Of Certiorari

To The Supreme Court Of Puerto Rico

---------------------------------♦---------------------------------

PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦---------------------------------

Nelson Daniel Centeno respectfully petitions for a

writ of certiorari to review the judgement of the Supreme Court of Puerto Rico in this case.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the Puerto Rico Supreme Court is

reported in Spanish as Pueblo v. Centeno, 2021 PRSC

133; the official translation appears as, 108 PR Offic.

Trans. ___ (2021), the certified translation appears in

Petitioner’s Appendix (“Pet. App.”) at 9a-36a (majority);

2

38a-65a (dissenting opinion, Estrella, J.); 66a-91a (dissenting opinion, Colón Pérez, J.). The Opinion of the

Court of Appeals is not published. A certified translation appears at Pet. App. at 93a-126a. The Opinion of

the Court of First Instance is not reported. A certified

translation appears at Pet. App. at 123a-138a.

---------------------------------♦---------------------------------

JURISDICTION

The Supreme Court of Puerto Rico entered its initial judgment on September 9, 2021. Pet. App. at 8a.

On November 1, 2021, it denied initial reconsideration.

Pet. App. at 6a (certified translation). On December 10,

2021, it denied further and final reconsideration Pet.

App. at 3a (certified translation). On March 10, 2022

Justice Breyer extended the deadline for filing this

Petition to May 2, 2022. This Court’s jurisdiction is invoked under 28 U.S.C. § 1258.

---------------------------------♦---------------------------------

PERTINENT CONSTITUTIONAL

AND STATUTORY PROVISIONS

U.S. Const. Article III, Sec. 2, cl. 3 provides:

Trial by jury.

The trial of all crimes, except in cases of

impeachment, shall be by jury; and such trial

shall be held in the State where the said

crimes shall have been committed; but when

not committed within any State, the trial

3

shall be at such place or places as the Congress may by law have directed.

U.S. Const. Amend. VI provides:

Rights of the accused.

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.

U.S. Const. Amend. XIV, Sec. 1 provides:

All persons born or naturalized in the

United States and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

U.S. Const. Amend. V provides, in pertinent part:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

4

Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall

any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be

a witness against himself, nor be deprived of

life, liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

P.R. Const. Art. II, § 7, L.P.R.A., tit. 1 provides, in

pertinent part:

Section 7. The right to life, liberty and the

enjoyment of property is recognized as a fundamental right of man. The death penalty

shall not exist. No person shall be deprived of

his liberty or property without due process of

law. * * *.

P.R. Const. Art. II, § 11, L.P.R.A., tit. 1 provides, in

pertinent part:

Section 11. In all criminal prosecutions,

the accused shall enjoy the right to have a

speedy and public trial, to be informed of the

nature and cause of the accusation and to

have a copy thereof, to be confronted with the

witnesses against him, to have assistance of

counsel, and to be presumed innocent.

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

5

a majority vote which in no case may be less

than nine.

No person shall be compelled in any criminal case to be a witness against himself and

the failure of the accused to testify may be neither taken into consideration nor commented

upon against him.

No person shall be twice put in jeopardy

of punishment for the same offense. Before

conviction every accused shall be entitled to

be admitted to bail. Incarceration prior to trial

shall not exceed six months nor shall bail or

fines be excessive. No person shall be imprisoned for debt.

34 L.P.R.A. App. II, Rule 112 provides:

JURY; NUMBER OF JURORS; VERDICT

Juries shall be of twelve (12) residents of the

district, who shall render a verdict by the concurrence of not less than nine (9) votes.

---------------------------------♦---------------------------------

INTRODUCTION

On the heels of this Court’s decision in United

States v. Vaello Madero, 596 U.S. ___, ___ (2022), 2022

WL 1177499, this case asks whether the procedural

rule announced in Ramos v. Louisiana, 590 U.S. ___,

140 S.Ct. 1390, 1395 (2020) has implicitly invalidated

Puerto Rico’s Constitutional provision authorizing acquittals by a majority of nine or more.

6

Exactly a century ago, in Balzac v. Porto Rico, 258

U.S. 298, 306, 308-10 (1922), this Court rejected application of the Sixth Amendment to Puerto Rico, based

upon its civil-law heritage, if not also “ugly racial stereotypes.” (Vaello Madero, 2022 WL 1177499 at *13

(Gorsuch, J., concurring). Since 1952, Puerto Rico’s legal tradition has required jury trials in felony cases

under its own Bill of Rights, which requires majority

verdicts of no less than nine.

In light of Ramos, Puerto Rico’s Supreme Court requires unanimity to convict. (People of Puerto Rico v.

Torres-Rivera, 204 D.P.R. ___, 2020 TSPR 42 (May 8,

2020) (Pet. App. at 139a-169a)). The question presented

here is whether, when this Court ruled that the Sixth

Amendment means that “[a] jury must reach a unanimous verdict in order to convict” (Ramos, 140 S.Ct. at

1395), it meant to say that the Sixth Amendment requires a jury to reach a unanimous verdict to acquit.

While Puerto Rico’s Supreme Court expressed “no

doubt that [Ramos] overturned our constitutional

clause” with respect to acquittals (Pet. App. at 33a),

that question was not before this Court then, and it has

never so ruled.

The decision below hardly rests on a sturdy foundation. Two separate dissents expressed no doubt that

this Court had done nothing of the sort. One called the

majority ruling “the polar opposite” (Pet. App. at 65a)

of this Court’s decision. Both dissenting opinions echoed the unanimous decision in the Puerto Rico Court

of Appeals, affirming the trial court’s rejection of the

view that Ramos requires unanimous acquittals. They

7

agreed with the Supreme Court of Oregon that “Ramos

does not imply that the Sixth Amendment prohibits acquittals based on nonunanimous verdicts,” State v.

Ross, 481 P.3d 1286, 1293 (2021).

Because it misconstrues this Court’s ruling in Ramos to require Puerto Rico to modify their constitutions to demand unanimity to acquit, the decision

below creates a direct conflict with the highest court of

Oregon. Because the Sixth Amendment was intended

to serve as a protector of rights, not a straight jacket to

impose federal rules of procedure, certiorari should be

granted and the decision below reviewed and reversed.

---------------------------------♦---------------------------------

STATEMENT

A.

Legal Background: Puerto Rico’s Constitution and Trial by Jury.

Art. III, § 2, of the United States Constitution provides: “The Trial of all Crimes . . . shall be by Jury.” The

Sixth Amendment elaborates on 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.”

The Sixth Amendment right to jury trial was the

last to be enforced against the states. See McDonald v.

City of Chicago, 561 U.S. 742, 766 (at n. 12–n. 14)

(2010). The only federal court to review the claim that

unanimity was required to convict in Puerto Rico

8

consistently rejected that claim. Torres v. Delgado, 510

F.2d 1182, 1183 (1st Cir. 1975); Fournier v. González,

269 F.2d 26, 28-29 (1st Cir. 1959).

When, after fifty-four years of direct legislation for

Puerto Rico, Congress authorized Puerto Rico to enact

a Constitution of its own in 1952,1 its Bill of Rights provided that, in all felony prosecutions, “the accused

shall have the right of trial by an impartial jury composed of twelve * * * , who may render their verdict by

a majority vote which in no case may be less than

nine.” P.R. Const. Art. II, § 11, LPRA, tit. 1.

That proportion was deliberate, and made subject

to legislative amendment. See Pet. App. at 22a-28a

(majority opinion); 61a-64a (Estrella, J., dissenting);

73a-79a (Colón Pérez, J., Dissenting). As this Court

noted in Puerto Rico v. Sanchez Valle, 579 U.S. 59, 67

136 S.Ct. 1865, 1869 (2016), the approval of Puerto Rican voters did not suffice; Congress reviewed and

amended parts before approving it.

The non-unanimous jury provision was not

amended by Congress, and was the law in Puerto Rico

until after this Court decided Ramos. Shortly thereafter, Puerto Rico’s Supreme Court ruled in Torres-Rivera, supra (official translation attached at Pet. App. at

139a-169a).

1

Public Law 447, 82nd Cong. (66 Stat. 327).

9

B.

The Proceedings Below: The Prosecution

Argues Ramos Requires Unanimous Acquittals.

Nelson Daniel Centeno was charged with felony

offenses ranging from burglary and firearms possession to first degree and attempted murder. The prosecution requested that jurors be instructed that either

verdict must be unanimous. Specifically: “ you must all

agree and vote, unanimously, whether to find the defendant guilty or to find him not guilty.” Pet. App. at

12a.

The defense opposed, and proposed an instruction

requiring unanimity to convict, but retaining the language of the existing model instruction, requiring at

least nine votes for acquittal. The defense instruction

is quoted at Pet. App. at 69a.

C.

The Trial Court and Court of Appeals Reject that Argument.

The trial court adopted the defense request. Ramos

was limited to whether the Sixth Amendment “demands a unanimous verdict to convict a person accused of crime, . . . not an acquittal,” it ruled. Pet. App.

at 136a. The prosecution’s motion for reconsideration

was denied. Pet. App. at 69a.

In the Court of Appeals, the Solicitor General argued that “under the Constitution of the United States,

a verdict – whether to convict or to acquit – that fails

to meet the unanimity requirement is constitutionally

invalid.” Pet. App. at 15a. The defense asked that court

10

to take notice of the decision of Oregon’s Supreme

Court in State v. Ross, 367 Or. 560, 481 P.3d 1286

(2021), arguing that Ramos did not invalidate the nonunanimous provision of Puerto Rico’s Constitution

with respect to acquittals. Pet. App. at 98a-99a.2

The Court of Appeals affirmed, quoting from Ramos,

rejecting the argument “that a nonunanimous verdict

. . . [of ] not guilty would be contrary to Ramos v. Louisiana” (Pet. App. at 104a). Ramos “solely and exclusively

addressed the unanimity requirement in the context of

finding a defendant guilty of a felony.” It rejected an

invitation to read Ramos expansively. Id. at 106a.

Because “the only legal basis to support the State’s

contention, Ramos . . . , does not address the controversy here” (Pet. App. at 111a), Puerto Rico remains

free to provide broader protections to the accused than

the minimum required by the Sixth Amendment. “After all, it [has] a Bill of Rights that was adopted more

than a century after the Bill of Rights of the United

States Constitution.” (Id. at 110a, n. 8, quoting Pueblo

v. Diaz Bonanano, 176 D.P.R. 601, 622, 76 PR Offic.

Trans. 37 (2009)). And see Rodríguez Casillas, J., concurring (Puerto Rico’s “is a cutting-edge vision of individual liberties, which itself provides that it “shall not

be construed restrictively, . . . .”) Pet. App. at 119a.

Mr. Centeno has not been tried. Here, as in Ross, the question has been finally determined at the only opportune moment.

In the event of an acquittal, the prosecution could not appeal, and

in the event of a conviction by unanimous jury, it would be impossible to prove prejudice.

2

11

D.

Puerto Rico’s Supreme Court Rules that

Ramos Mandates Unanimity for Acquittal.

From that decision, Puerto Rico’s Solicitor General

sought certiorari from the Supreme Court. In an opinion issued under an expedited proceeding,3 that court

reversed. Noting that it had rejected Sixth Amendment challenges to nonunanimous verdicts of guilt on

least eight occasions prior to Ramos, (Pet. App. at 18a19a, n. 16) it proceeded to “analyze the implicit effect

of Ramos” on the requirement for acquittals. Id. at 19a.

In essence, the majority adopted the Solicitor General’s argument that “under the Constitution of the

United States, a verdict – whether to convict or to acquit – that fails to meet the unanimity requirement is

constitutionally invalid.” Id. at 14a. It emphasized this

Court’s application “to state and federal criminal trials

equally,” citing Ramos, 140 S.Ct. at 1397.

While acknowledging that “Ramos was most certainly circumscribed to non-unanimous guilty verdicts,” the majority ruled that “we have no doubt that

this decision overturned our constitutional clause.”

Pet. App. at 33a. Thus, it reasoned, “the binding nature

of the verdict to convict in Ramos established for the

benefit of the defendant also binds us, in our jurisdiction to the unanimity of verdicts to acquit.” Id. at 34a.

That decision provoked two lengthy and vigorous

dissents. The first, by Justice Estrella Martínez, quotes

the decision of the Supreme Court of Oregon ruling

3

See dissenting opinion at Pet. App. 67a.

12

that “ ‘Ramos does not imply that the Sixth Amendment prohibits acquittals based on nonunanimous verdicts . . . ’ ” (quoting from State v. Ross 367 Or. 560, 573

(2010)) Pet. App. at 48-49a (Estrella, J., dissenting).

Like that court, he believed that Ramos “left open for

state courts to construe their respective constitutions

on the issue of acquittals by a majority vote” (Pet. App.

at 37a-38a).

In his dissent, Justice Colón Pérez also adopted

the language from Ross quoted above, agreeing with the

opinion of the Court of Appeals. Pet. App. at 70a, n. 91.

With respect to whether Ramos “completely superseded the standard” established in Puerto Rico’s Constitution, Justice Colón Pérez emphasized that it did so

with respect to guilty verdicts only. Id. at 86a-87a.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I.

THE PETITION PRESENTS AN IMPORTANT QUESTION OF FEDERAL CONSTITUTIONAL LAW THAT THIS COURT

HAS NOT ADDRESSED.

A. This question was not before this Court

in Ramos, which was limited to correcting a discriminatory deprivation of

Sixth Amendment rights.

The Puerto Rico Supreme Court based its decision

on an inference about an issue this Court did not address

in Ramos. It is, in fact, an issue of federal law that this

Court has never addressed. The decision in Ramos was

13

limited to eliminating the vestiges of laws in two states

that permitted conviction without meeting the constitutional minimum of unanimity. It reversed half a century of precedent, and extended or incorporated an

unarticulated understanding that the Sixth Amendment requires unanimity for conviction in the states.

See Timbs v. Indiana, 586 U.S. ___, ___, 139 S.Ct. 682,

687 (2019).

In taking that step, this Court did not provide an

advisory opinion about acquittals. It had no reason to.

Still less did it have reason to consider the extent to

which the requirement of unanimity to guilty verdicts

should also bind the fruit of the United States “burgeoning colonial ambitions” (United States v. Vaello

Madero, supra, 2022 WL 1177499 at *11) in Puerto

Rico, with a legal tradition not rooted in the common

law of England.4 Common law tradition is a poor guide

to the express intent of Puerto Rico’s Constituent Assembly’s deliberate decision to reject unanimity and

make the number of votes required subject to legislative modification. The fact that they erred in depriving defendants of the right to require unanimity for

Puerto Rico v. Sanchez Valle, 136 S.Ct. at 1884 (Puerto

Rico’s legal heritage lies in European civil codes and Roman law)

(Breyer, J., and Sotomayor, J., dissenting); Reid v. Covert, 354

U.S. 1, 13 (1957) (Art. III, cl. 2, does not apply to Puerto Rico,

which “had entirely different cultures and customs from those of

this country”); Boumediene v. Bush, 553 U.S. 723, 757 (2008) (“the

former Spanish colonies operated under a civil-law system, without experience in the various aspects of Anglo-American legal tradition, for instance, the use of grand and petit juries.”)

4

14

conviction does authorize a remedy making it harder

to acquit them.

B. This is an issue of unusual public importance.

Like Ramos, this petition poses a question about a

fundamental right of a person accused in our system of

criminal justice. See, e.g., Williams v. Florida, 399 U.S.

78, 100 at n. 46 (1970) (six member jury not unconstitutional, but unanimity “may well serve an important

role in the jury function, for example, as a device for

insuring that the Government bear the heavier burden

of proof.”) (Citation omitted). On a deeper level, it asks

whether the Constitution requires symmetry, balance,

or equivalence between factors that favor the prosecution and the defense, or is designed to serve as a counterweight to the mighty powers of the State.

And, inevitably, it again implicates this Court’s jurisprudence regarding the uncomfortable relation between the Constitution and Puerto Rico.5 It does so in

a context that illustrates the dangers of assuming that

respect for its “territory” means the mechanical application of rules fashioned in the fifty states, without individualized consideration of more than five centuries

of Puerto Rican history resulting in a distinctly different civic and legal culture.

See, e.g., David Helfeld, How Much of the United States

Constitution and Statutes are Applicable to the Commonwealth of

Puerto Rico? 110 F.R.D. 449 (1985).

5

15

C. Ramos establishes a rule of criminal

procedure, not a constitutional mandate reaching beyond its clear holding

to invalidate constitutional provisions

permitting acquittals.

In Edwards v. Vannoy, ___ U.S. ___, 141 S.Ct. 1547

(2021), this Court was called upon to determine the impact of Ramos on “the only two States that still allowed

non-unanimous juries” (141 S.Ct. at 1554) (referring to

Oregon and Louisiana). Critical to the determination

that Ramos does not apply retroactively on federal collateral review is the fact that, notwithstanding its

roots in the Sixth Amendment, it is a “new rule of criminal procedure.” 141 S.Ct. at 1554.

From this fact, the rule of non-retroactivity flows.

Ramos establishes that unanimity to convict is a protection for the accused deeply rooted in the common

law. That procedural rule, profoundly important

though it be, should not be read to correct past denials

of the requirement of its command by abolishing nonunanimous acquittals. Much less should it be permitted to do so sub silencio, without considering the particular case of Puerto Rico.

D. The decision below creates a direct conflict with the highest court of a state.

Leaving this issue subject to interpretation from

what this Court has not said predictably leads to contradictory results: here, from the highest courts of

Oregon and Puerto Rico. Two jurisdictions, faced with

16

precisely the same question in relation to a recent decision of this Court, have been answered it in diametrically opposite ways.

This conflict will not resolve itself. It is firmly entrenched. Oregon’s Supreme Court determined that

Ramos left unaffected its essentially identical constitutional provision.6 Since the decision in Ross, its

Court of Appeals has consistently required that Ross

be followed. State v. Patino-Ochoa, 316 Or. App. 478,

(Ct. App. 2021) (“ ‘[W]e note that “Oregon law requires

a unanimous guilty verdict for all charges” but “permits a not-guilty verdict by a vote of 11 to one or 10 to

two,” ’ ” citing Ross, 481 P.3d 1286, n. 1 (2021); State v.

Scott, 311 Or. App. 175, 176, n. 1 (Ct. App. 2021); State

v. Martineau, 317 Or. App. 590 (Ct. App. 2022) (harmless because guilty verdicts were unanimous).

Notwithstanding the prominent role of Ross in the

decision it reversed, Puerto Rico Supreme Court’s

ORS 136.450 provides:

“Except as otherwise provided, the verdict of a trial

jury in a criminal action shall be by concurrence of at

least 10 of 12 jurors except in a verdict for murder

which shall be unanimous.”

Article I, section 11, of the Oregon Constitution provides, in

part:

“In all criminal prosecutions, the accused shall have

the right to public trial by an impartial jury * * * provided, however, that in the circuit court ten members

of the jury may render a verdict of guilty or not guilty,

save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict,

and not otherwise[.]”

6

17

majority opinion fails to mention it. The two decisions

cannot be harmonized. Such diametrically opposite

readings of this Court’s decision on a fundamental constitutional right defeats the objective of uniformity of

interpretation of those rights – one of the very objectives of Ramos.

This Court should grant review to eliminate confusion with respect to whether the Sixth Amendment

requires unanimity to acquit, or leaves Oregon or

Puerto Rico (now) to establish their own rules to distinguish between hung juries and acquittals – and

other states to do so in the future.

E. This case is the perfect vehicle for resolution of the conflict, and the issue.

This petition presents a pure question of law. It

has been thoroughly explored below, and could be developed no further. All three levels of the lower courts

have issued written opinions which include dissenting

and concurring opinions about what their authors believe this Court intended to say, implied, or would say

if directly presented with this question.

There is nothing salutary about the contradictory

answers given by the courts below, nor the contradiction between the those of the Supreme Court of Oregon

and the majority below. There is neither room nor need

for further development, as these are the only two jurisdictions presently authorizing non-unanimous acquittals. There is a need for this Court to answer the

question presented when it is presented directly,

18

rather than let stand a decision based upon an educated guess about what that answer would be.

II.

THE DECISION BELOW IS WRONG.

The decision below should be reversed, not merely

because it conflicts with Ross, but because it is wrong.

Oregon’s Supreme Court correctly understood that this

Court overruled Apodaca v. Oregon, 406 U.S. 404

(1972) because the Sixth Amendment protects the

rights of the accused by requiring unanimity to convict.

Puerto Rico’s did not. It adopted the view of its Solicitor

General that “under the Constitution of the United

States, a verdict – whether to convict or to acquit – that

fails to meet the unanimity requirement is constitutionally invalid.” Pet. App. at 15a. This is ultimately

posited as the “implicit effect of Ramos.” Id. at 20a.

The Sixth Amendment offers no protection to the

prosecution. Nor does it establish the practice in federal courts as embodying requirements of the Constitution.7 The logic of symmetry has no place in our

system of constitutional criminal law. Avoiding the

Scylla of non-unanimous guilty verdicts does not require crashing into the Charybdis of requiring unanimity for acquittals.

The fact that “a single juror’s vote to acquit is

enough to prevent a conviction” (Ramos, 140 S.Ct. at

7

Fed. R. Crim. P. 31(a) provides:

(a) Return. The jury must return its verdict to a judge

in open court. The verdict must be unanimous.

19

1394) does not logically imply that the vote of two or

three should not suffice to acquit. “In every substantial

sense our constitutional provisions in respect to jury

trials in criminal cases are for the protection of the interests of the accused,” not “part of the structure of government.” Patton v. United States, 281 U.S. 276, 296

(1930).

Protecting the defendant from the Executive

branch has long been part and parcel of an asymmetry

deeply rooted in the common law. Defending British

soldiers accused of murder during the Boston Massacre, John Adams explained: “We find, in the rules laid

down by the greatest English Judges, who have been

the brightest of mankind; We are to look upon it as

more beneficial, that any guilty persons should escape

unpunished, than one innocent person should suffer.”8

The court below relied upon this Court’s discussion of the Anglo-American history of juries in Ramos,

while ignoring salient facts. In Puerto Rico, jury trials

were unknown for the first four centuries of European

colonization.9 As this Court has acknowledged in the

John Adams, at “Founders Online: Adams’ Argument for

the Defense: 3-4 December 1770”, apparently alluding to 4 William Blackstone, Commentaries on the Laws of England *352

(1769) (“all presumptive evidence of felony should be admitted

cautiously: for the law holds that it is better that ten guilty persons escape than that one innocent suffer.”) https://founders.

archives.gov/documents/Adams/05-03-02-0001-0004-0016 (last

viewed 4/16/22).

9

Puerto Rico’s Constitution incorporates neither grand jury

nor civil jury trials. See Marshall v. Perez Arzuaga, 828 F.2d 845,

849 (1st Cir. 1987); Gustavo A. Gelpi, The Insular Cases: A

8

20

cases cited at page 13 of this Petition, the common law

is not part of its tradition. This does not mean that

Puerto Rico had no established legal system for the

first four centuries. It had, and has, a different one.10

When Puerto Rico adopted jury trials as part of its

Constitution, it did so in a manner more specific than

the text of the Sixth Amendment, and specifically contemplated enlargement by positive law, consistent

with the practice in civil-law jurisdictions. Did it succumb to the temptation of making it easier to convict

at a moment of political crisis? It did.11 That error cannot be corrected by making it harder to acquit.

Nor can earlier refusals to extend the right to jury

trial to Puerto Rico for reasons at once racist and

Comparative Historical Study of Puerto Rico, Hawai’i, and the

Philippines, 58 THE FEDERAL LAWYER 22, 24, n. 11 (Mar./Apr.

2011).

10

Valle v. American Int’l Ins. Co., 108 D.P.R. 692, 697-98,

1979 WL 59104 (P.R. 1979) condemned the practice of “applying

common law principles and methods of adjudication inconsistent

with Puerto Rico’s civil law system,” as foreign to Puerto Rico’s

roots in the Spanish legal tradition.” Its author, José Trías Monge

served as Chief Judge of the Supreme Court, delegate to Puerto

Rico’s Constitutional Convention, Puerto Rico’s Attorney General,

and was the author of the 5 volume Historia Constitucional de

Puerto Rico (Constitutional History of Puerto Rico) Editorial Universitaria (1980). And see, e.g., FDIC v. Arrillaga-Torrens, 212

F. Supp. 3d 312 (2016).

11

See Pet. App. at 29a, 52a, 76a. The intent was to facilitate

conviction of members of the Nationalist Party and quell support

for independence, in light of the release of its President, Pedro

Albizu Campos, from prison and his return to Puerto Rico in 1948.

21

rational12 be remedied by inferring from this Court’s

extension of this right to states an intention to prohibit

it, or Oregon, from preserving their constitutional provisions for non-unanimous acquittals.

The majority decision below relies upon abstract

logic rather than any analysis of the purpose and

meaning of the Sixth Amendment and its application

in Puerto Rico. The dissenting opinions, like the Court

of Appeals and trial court, correctly posited that the

rights established in the Bill of Rights are extended to

non-federal jurisdictions for the purpose of expanding,

not restricting their exercise. Dissent of Estrella Martínez Pet. App. at 39a-40a. As a matter of federal law,

they are right. In Ramos, this Court repeatedly expressed the function of the unanimous verdict as protecting the defendant, referring to the fact that a

“single juror’s vote to acquit is enough to prevent a conviction.” 140 S.Ct. at 1394. An accused has a “constitutional right to demand that his liberty should not be

taken” without unanimous verdict. Id. at 1396-96.

It cannot be argued that nonunanimous acquittals

restrict the right of defendants to a jury of their

peers. They restrict no rights. They protect them, by

Balzac v. Puerto Rico, 258 U.S. 298, 304-305 (1922); Dorr

v. United States, 195 U.S. 138, 148 (1904) describing “unincorporated territories” as places where “jury trials are unknown, but a

method of fair and orderly trial prevails under an acceptable and

long-established code,” as a reason to respect “the preference of

the people” and not reject “their established customs” to replace

them with “a system of trial unknown to them and unsuited to

their needs.” Id. at 310.

12

22

prohibiting yet another trial when, after collective deliberation, the prosecution’s proof fails to convince one

or more, but fewer than twelve jurors of a defendant’s

guilt beyond a reasonable doubt. Such a rule is more

consistent with Ramos and the Sixth Amendment than

the decision below.

---------------------------------♦---------------------------------

CONCLUSION

The Petition for writ of certiorari should be

granted.

Respectfully submitted,

LINDA BACKIEL

267 C. Sierra Morena

PMB 597

San Juan, Puerto Rico 00926

(787) 751-4941

lbackiel@gmail.com

RACHEL BRILL

Counsel of Record

163 Domenech Avenue

San Juan, Puerto Rico 00918

(787) 753-6131

Rabrill@gmail.com

Counsel for Petitioner

APRIL 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.