Petition for Writ of Certiorari — Nelson Daniel Centeno, Petitioner v. Commonwealth of Puerto Rico
Supreme Court briefApr 28, 2022
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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.