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Opinion analysis: With debate over adherence to precedent, justices scrap nonunanimous jury rule

Posted by Fay Arfa | Apr 21, 2020 | 0 Comments

In 1972, the Supreme Court ruled that the Sixth Amendment guarantees a right to a unanimous jury – but that defendants in state trials do not have such a right. Today, by a vote of 6-3, the justices reversed course, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The ruling is significant not only for the inmates who were convicted by nonunanimous juries in Louisiana and Oregon, but also for the extent to which the justices were deeply splintered as they debated whether and when to overturn longstanding precedent.

The question came to the justices in the case of Evangelisto Ramos, who stood trial for the 2014 stabbing death of Trinece Fedison. Only 10 of the 12 jurors on Ramos' jury agreed that Ramos was guilty, but that was enough for a conviction: Until 2019, Louisiana did not require a unanimous verdict. Ramos challenged his conviction, arguing that the Sixth Amendment – which establishes the right to an “impartial jury” – requires a unanimous jury verdict, but a state appeals court rejected that argument, and the Louisiana Supreme Court declined to weigh in. Ramos then went to the U.S. Supreme Court, which agreed last year to hear his case.

Justice Neil Gorsuch wrote for the majority, in an opinion that was joined in full by Justices Ruth Bader Ginsburg and Stephen Breyer and in part by Justices Sonia Sotomayor and Brett Kavanaugh. In the abstract, Gorsuch viewed the question presented by Ramos' case as an easy one. It is “unmistakable,” he wrote, that when the Sixth Amendment was adopted, the right to a “trial by an impartial jury” included the right to a unanimous jury. And it is also clear that the Sixth Amendment's unanimous jury requirement “applies to state and federal criminal trials equally.”

However, Gorsuch explained, it “turns out that the Sixth Amendment's otherwise simple story took a strange turn” with the Supreme Court's 1972 decision in Apodaca v. Oregon. In that case, four justices agreed that the Sixth Amendment establishes a right to a unanimous jury in both federal and state courts; four justices would have ruled that the Sixth Amendment does not guarantee any defendants a right to a unanimous jury; and Justice Lewis Powell, the deciding vote, concluded that the Sixth Amendment guarantees defendants in federal court – but not in state court – a right to a unanimous jury verdict. Since then, Gorsuch observed, the Supreme Court has been “studiously ambiguous” and “even inconsistent” about exactly what Apodaca means.

Louisiana, Gorsuch wrote, urged the justices to rule that there is no unanimous jury requirement in federal or state court because the Supreme Court has never definitively established such a rule. That argument, Gorsuch acknowledged, is not “quite as tough as trying to defend” the idea that federal defendants are entitled to a unanimous jury verdict but state defendants are not, “but it's pretty close.” There was a long history of a right to a unanimous verdict when the Sixth Amendment was adopted, Gorsuch reasoned, and courts should adhere to that without engaging in any weighing of the costs created by a unanimous jury rule against the benefits – particularly when both Louisiana and Oregon imposed the nonunanimous jury rule for racially motivated reasons.

Gorsuch (in a part of the opinion joined only by Ginsburg and Breyer) then moved on to address the arguments advanced by Justice Samuel Alito's dissent, which focused on the doctrine of stare decisis – the idea that courts should normally follow their prior precedent. First, Gorsuch contended, “not even Louisiana tries to suggest that” the court's 1972 opinion in Apodaca actually “supplies a governing precedent” – or to put it another way, the court does not need to overrule Apodaca, because it was not established precedent.

But in the next part of the opinion, which Sotomayor joined as well, Gorsuch went on to say that even if Apodaca did set a precedent, “no one on the Court is prepared to say it was rightly decided, and stare decisis isn't supposed to be the art of methodically ignoring what everyone knows to be true.” The only reasons cited by the state to preserve the nonunanimous-jury rule, Gorsuch posited, are the effects that a reversal would have on its criminal justice system, as well as on the system in Oregon, which uses a similar rule. First, the states would have to retry defendants who were convicted by nonunanimous juries and whose appeals have not yet become final. Gorsuch acknowledged that today's decision “will surely impose a cost,” but only in two states, while the Supreme Court's decisions can sometimes have nationwide effects. Second, Louisiana argued, defendants whose convictions have already become final might challenge them on collateral review. But that question is not before the Supreme Court, Gorsuch emphasized. And in any event, Gorsuch continued, the test that the Supreme Court applies to determine whether a new rule of criminal procedure applies retroactively is sufficiently stringent that no rule has ever met it.

Sotomayor filed a brief concurring opinion in which she stressed that overruling Apodaca “is not only warranted, but compelled.” In her view, this case presents a unique situation. Apodaca was a “universe of one” because it is at odds with two different lines of precedent: the idea that the Sixth Amendment requires unanimity and the idea that the Bill of Rights applies to the states. Moreover, Sotomayor added, the principle of stare decisis is least powerful in cases like these, involving the intersection of criminal procedure and fundamental constitutional protections. Finally, Sotomayor reiterated that the “racially biased origins of the Louisiana and Oregon laws uniquely matter here.”

Kavanaugh filed a concurring opinion that focused on his views on the application of stare decisis to this case. Noting that “every current Member of this Court has voted to overrule multiple constitutional precedents” in recent years, he explained that the court has identified a variety of factors on which it relies when deciding whether to overrule earlier constitutional decisions that it believes are wrong. However, he continued, the court has not established “any consistent methodology or roadmap” for applying those factors. For Kavanaugh, the factors boil down to three “broad considerations.” The first is whether the court believes that the decision that it would overrule is “not just wrong, but grievously or egregiously wrong” – which he believes Apodaca was. The second consideration is whether the prior precedent has “caused significant jurisprudential or real-world consequences.” Here Kavanaugh conceded that the nonunanimous-jury rule was “workable,” but he posited that it allowed for the conviction of defendants who might not otherwise have been convicted. As for the third consideration that Kavanaugh identified, whether people have relied on the earlier decision, Kavanaugh suggested that it “will be relatively easy going forward” for the states to apply the new rule requiring a unanimous jury.

Justice Clarence Thomas agreed with the majority that the Constitution requires a unanimous jury verdict for state defendants like Ramos. However, he wrote separately to argue that this right applies to the states through the 14th Amendment's privileges or immunities clause, rather than the due process clause.

Alito's dissent was joined by Chief Justice John Roberts and (for the most part) Justice Elena Kagan. Alito lamented that stare decisis “gets rough treatment in today's decision,” as a “badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.” In particular, Alito pushed back against the argument that Apodaca was never a precedent, retorting “Really?” In his view, it “clearly was a precedent” and reliance on the decision was “not only massive” but “concrete.” In fact, Alito argued, the states' reliance on the decision in Apodaca “far outstrips” the reliance interests in play in other recent cases in which the court has overruled its prior precedents.

Today's ruling ends a decades-long battle over the nonunanimous jury rule. If the spirited debate in today's opinions is any indicator, however, the battle over stare decisis is likely to continue well into the foreseeable future.

This post was originally published at Howe on the Court.

About the Author

Fay Arfa

Fay Arfa has the distinction of being Certified as a Specialist in two separate areas of law – Criminal Law as well as Appellate Law – by the California State Bar, Board of Specialization. The National Board of Trial Advocacy has also awarded her a board Certification in Criminal Trial Advocacy. ...


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