Non-Unanimous Juries In Criminal Cases

A pending case in Louisiana in the U.S. Supreme Court will have a direct prospective application in Oregon, although it will also apply to pre-2019 cases out of Louisiana.

Louisiana’s aberrant take on the right to a jury trial in America will itself go on trial Monday, as the U.S. Supreme Court takes up a challenge to the non-unanimous verdict law that state voters just ditched, but only going forward. 

On the opening day of the court’s new term, the justices are set to take up the case of Evangelisto Ramos, an oil-supply boat worker who was convicted of second-degree murder in the killing of 43-year-old Trenice Fedison in New Orleans. . . . The verdict came in two hours after the jury filed out to deliberate in June 2016. The vote was 10-2, a valid split verdict to convict under Louisiana law, and an outcome nearly as common as consensus in Louisiana jury decisions, an exhaustive analysis of six years of court records by The Advocate shows.

Ramos, who is 46 and serving a life prison sentence with no chance at parole, was in baby clothes the last time the Supreme Court addressed split-verdict laws, which remain in play, for now, in the only states that have allowed them: Louisiana and Oregon. 

The high court's verdict back then, in an oddly concocted 5-4 opinion, was that the U.S. Constitution requires unanimity in federal jury rooms, but that states were free to tinker with their own rules, since the Sixth Amendment doesn’t explicitly mention that juries must be unanimous. . . .  

Louisiana was the first state to break from centuries of Anglo-Saxon legal tradition calling for unanimity in jury verdicts, when delegates at an openly racist 1898 convention endorsed split verdicts in serious felony trials. Oregon followed suit in 1934, taking a populist path to split verdicts that was rooted in anti-Semitism. 

Louisiana tinkered again shortly after the high court’s 1972 decision in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Delegates to the 1973 state convention opted to require 10 jurors to agree to convict or acquit, up from nine. 

Louisiana’s decision last year to jettison the state’s split-verdict law altogether — ending a 120-year experiment of the Jim Crow era that continues to disparately impact black defendants and jurors today — was prospective; the change applies only to defendants suspected of crimes committed in 2019 or later.

From here.

The fact that certiorari was granted at all suggests that someone on the high court thinks that non-unanimous juries should no longer be allowed.

SCOTUS blog has some analysis of the case. Deep legal history and the fractured nature of the 1972 decision will factor strongly as will recent decisions from the U.S. Supreme Court stating that constitutional amendments should be either fully incorporated as applicable against U.S. states or should not apply at all.

On the other hand, SCOTUS may be loath to retroactively change a clear rule of the road precedent that would threaten to require new trials in a huge number of Louisiana ad Oregon felony convictions.

Oral argument recap is available at the New York Times. The state of Louisiana's argument looked weak:

Elizabeth Murrill, Louisiana’s solicitor general, spent most of her time arguing that the court had been wrong to require unanimous juries in either state or federal court. The Sixth Amendment does not mention the requirement, she said, meaning that non-unanimous verdicts should be permissible in both. 

Justice Brett M. Kavanaugh asked Ms. Murrill for her best arguments for treating state juries differently from federal ones should the court reject her Sixth Amendment argument. 

“Justice Kavanaugh,” she responded, “they are concededly not very good.” 

Justice Kavanaugh also asked about what he said was the ugly history of Louisiana’s unanimity requirement, saying “the rule in question here is rooted in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.”

The full oral argument is available here.

There is not a snowball's chance in hell that the U.S. Supreme Court will use this case to overturn the unanimity requirement under the 6th Amendment in the federal courts. And, when Justice Kavanaugh is willing to say that the law is "rooted in racism" you know you are in trouble. 

The real issues will be whether the clear 1972 precedent on the issue should be respected despite the fact that it is widely seen as a bad rule of law, at least, as to cases decided prior to this decision.

Put another way, is a conservative court willing to adopt a rule of law that will have the effect of vacating the convictions of a lot of convicted felons in Louisiana and Oregon, a significant number of which are factually guilty.