Bloomberg Law
Dec. 2, 2020, 9:50 AM

Jury Unanimity Rule’s Reach Faces Supreme Court Test

Jordan S. Rubin
Jordan S. Rubin

The Supreme Court is revisiting its ruling from last term that barred non-unanimous jury convictions for serious crimes, to determine whether those who’ve exhausted their initial appeals can benefit from the decision.

The justices will hear arguments on Wednesday as the government presses to protect convictions while defendants say retroactivity is needed to fully right the wrong the court recognized last term.

“What’s at stake in this case really strikes at the heart of what the Constitution is meant to do, which is to protect citizens from government tyranny,” said James Dold, CEO and founder of Human Rights for Kids, one of the many advocacy groups that filed amicus briefs to the justices seeking to make the ruling retroactive.

Dold said the case is “the epitome of systemic racism in the criminal justice system, particularly for Black people in Louisiana, and particularly Black children.” His brief highlights juvenile offenders convicted by non-unanimous juries despite evidence of their innocence.

Last term in Ramos v. Louisiana, the high court majority noted the racist history of split verdicts in striking them down.

At the center of this latest case is Thedrick Edwards, a Black man convicted in 2007 of armed robbery, kidnapping, and rape by a non-unanimous Louisiana jury and sentenced to life in prison. The lone Black juror voted to acquit on all counts.

But while defendants like Edwards argue for fairness, government officials argue for finality.

“Thousands of long-final convictions would be unsettled by retroactive application of the Ramos Rule,” said Louisiana Solicitor General Elizabeth Murrill, who argued for the state in Ramos and will do so again on Wednesday. “It should not be applied retroactively, upending long-final convictions involving rape, murder, child molestation, and other violent crimes.”

Demanding Test

Newly-recognized criminal procedure rules generally don’t apply retroactively. Under the court’s 1989 ruling in Teague v. Lane, they can if they implicate fundamental fairness and accuracy.

Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it,” Justice Neil Gorsuch, who authored the majority opinion Ramos, wrote while explaining that the retroactivity question was one for another day.

The landmark 1963 right-to-counsel decision in Gideon v. Wainwright is the only one the court has ever indicated could achieve this “watershed” status. So the case could come down to whether a majority of the court views Ramos as on par with Gideon.

Justice Brett Kavanaugh, who was in the majority in Ramos, said in a concurrence that he didn’t think the decision should apply retroactively.

Justice Amy Coney Barrett replacing the late Ruth Bader Ginsburg, who was also in the majority, adds an unknown.

Edwards is supported by groups including the Innocence Project New Orleans and the NAACP Legal Defense and Educational Fund, who say inaccuracy was built into the racist Louisiana system that sought to silence Black jurors and convict Black defendants. Oregon’s non-unanimous system that fell after Ramos was likewise the product of prejudice.

Yet Louisiana officials contend that requiring unanimous verdicts can actually decrease accuracy, if a holdout juror “has an irrational view of the evidence, has a bias in favor of the defendant, or is simply seeking nullification notwithstanding overwhelming evidence of guilt.”


The Justice Department, Oregon, and Puerto Rico—the territory also allowed non-unanimous convictions before Ramos—join Louisiana in warning that thousands of cases could be upended if Ramos applies retroactively.

Taking Edwards’ prosecution as an example, DOJ noted that the victim testified at his trial and would presumably have to do so again at a retrial.

“The consequence of applying Ramos retroactively,” DOJ said in its filing ahead of the argument, “thus may be the release of violent offenders who cannot practically be retried.”

The defense side says the result wouldn’t be so dire in a system that barely takes cases to trial, anyway.

“Less than one percent of cases proceed to trial in Louisiana. The vast majority will plea,” the Promise of Justice Initiative and Louisiana defense lawyers told the justices, in a brief filed by lead counsel Ben Cohen, who brought Ramos’ case to the Supreme Court. They identified 1,601 cases that could be affected.

Ed Tarpley, a former district attorney in Louisiana who has long championed unanimous jury verdicts in the state, said he understands the concern about disruption to the system. Now a defense lawyer, he’s on an amicus brief with other former prosecutors supporting Edwards.

It’s a valid concern, he said, but he thinks different considerations should win out.

“This law was wrong for all these years,” he said, “and all these people have suffered under a law that was clearly unconstitutional. There has to be a remedy.”

The case is Edwards v. Vannoy, U.S., No. 19-5807, oral argument 12/2/20.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at