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Jury Verdicts in Spotlight on Supreme Court’s Opening Day

Sept. 25, 2019, 8:56 AM

Courtroom dramas like “Twelve Angry Men” evoke the image of a jury struggling to unanimously decide a criminal defendant’s guilt.

But it only took 10 of 12 Louisiana jurors to convict Evangelisto Ramos of a murder he denies committing.

Now, Ramos wants the U.S. Supreme Court to strike the system that allowed that verdict. He is asking the justices, who will consider his case on the opening day of the high court’s 2019 term, to say once and for all that the Constitution requires unanimous criminal verdicts nationwide.

Louisiana and Oregon are the only states that allow split verdicts. Louisiana voters approved a ballot measure last year to stop them, but the measure applies to offenses committed starting this year, not retroactively. That means non-unanimous convictions are still possible there.

Defendants like Ramos want the Sixth Amendment’s jury unanimity right to be the next one fully “incorporated,” meaning it would apply in state trials, too, not just federal ones.

State officials warn that a ruling for Ramos could lead to toppling thousands of non-unanimous convictions. Ramos and his supporters cast those concerns as both overblown and misguided. They point to the discriminatory history of split verdict regimes and how they’re more likely to lead to convicting innocents.

“It shouldn’t matter if it’s one, a hundred, or a thousand people,” said Daniel Harawa of the NAACP Legal Defense and Educational Fund. He’s lead counsel on a brief backing Ramos at the high court.

“If somebody is in prison under an unconstitutionally-gained conviction, then the answer is that they deserve the trial that they were owed in the first place, and some kind of sky-is-falling argument shouldn’t trump somebody’s constitutional rights,” he said.

Notably, there’s a split verdict of sorts when it comes to Oregon officials’ views on unanimity. The state’s attorney general, Ellen Rosenblum, filed a brief siding with Louisiana, while the governor, Kate Brown, signed onto one supporting Ramos. Adding a further wrinkle to the split is that Rosenblum says she favors unanimous convictions.

“I filed the amicus brief in Ramos to explain the dire situation the Oregon justice system would find itself in if Apodaca were to be overturned,” Rosenblum said through a spokesperson, referring to the 1972 Supreme Court case, Apodaca v. Oregon, that condoned non-unanimous state verdicts. If the justices reverse that decision here, then “hundreds, if not thousands, of past Oregon felony convictions since 1972 could be overturned,” she said. “In my view, legislators should refer this important issue to the ballot so Oregonians can vote, and hopefully end the long-standing practice in Oregon of non-unanimous jury verdicts.”

Even if the justices rule for Ramos, the ruling’s impact—including whether it applies retroactively—would likely be the subject of further litigation.

Ramos faces life-without-parole for the murder of Trinece Fedison, whose dead body was found stabbed and stuffed in a New Orleans trash can in 2014. The case will be argued Oct. 7 and a decision is expected by late June.

Louisiana officials didn’t respond to a request for comment on the case.

Incorporation Trends

Ramos carries some momentum from last term’s ruling in Timbs v. Indiana, where the U.S. Supreme Court unanimously incorporated the Eighth Amendment’s excessive fines ban. A Bill of Rights protection gets incorporated if it’s “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition,” the court said in Timbs.

“This case offers the Court an opportunity to fulfill the promise of the 14th Amendment while it maintains the long held view that the right to a trial by jury means a unanimous verdict,” said Ramos’ lawyer G. Ben Cohen, referring to the amendment through which the court has incorporated rights.

Jeffrey Fisher of the Stanford Supreme Court Litigation Clinic, a repeat player at the high court, will argue the case to the justices on Ramos’ behalf.

Harawa said the Timbs case bodes well for Ramos. It’s further evidence of the justices’ inclination in recent years toward incorporation. He also points to another ruling from last term, Flowers v. Mississippi, where a lopsided majority ruled in a jury discrimination case for a black defendant tried six times by the same white prosecutor, as another recent case that shows the court may be poised to rule for Ramos.

The Oct. 7 argument could indicate whether the unanimous jury right is next, and, in turn, whether the high court will right what Ramos and his allies cast as a historical wrong.

Racist Origins

Split verdicts are vestiges of slavery and other discrimination, and they’re more likely to put innocent people behind bars, Ramos and interest groups aligned with his cause said in filings ahead of the argument.

Louisiana initially required unanimous criminal verdicts. But after the Civil War, an increase in legal rights for blacks—including jury service—was followed by a move in the state’s 1898 constitution cutting back on unanimity.

Oregon’s non-unanimous system is likewise rooted in prejudice.

It arose in a “racist, anti-Semitic moment,” said Aliza Kaplan, a professor at Lewis & Clerk Law School in Portland, Oregon, who’s supporting Ramos at the high court.

She’s referring to the trial of Jacob Silverman in the 1930s, where the jury fell one vote short of a murder conviction. An editorial in The Morning Oregonian complained about “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system.” The state then passed an amendment allowing split verdicts.

‘Turn a Blind Eye’?

The Supreme Court’s 1972 decision in Apodaca produced what Ramos calls “a tangle of seven separate opinions,” leading to a “fluke” that allowed Louisiana and Oregon to maintain their non-unanimous regimes.

He wants the justices to correct that decision, one that he deems out of step with history, precedent, and the Sixth Amendment’s purpose.

State officials draw the opposite conclusion from the historical record. They note, among other things, that the text of the Sixth Amendment doesn’t mention unanimity.

But Ramos maintains that the evidence points in one direction.

“The common law demanded unanimity for hundreds of years leading up to the Founding, and the Framers codified that common-law understanding in the Sixth Amendment,” he says in his brief, espousing the benefits of collective jury deliberations.

Imagine that “you’re on a jury and your voice doesn’t count,” Kaplan added. “Imagine if you’re the defendant, and there’s one or two people on your jury who thinks the state didn’t prove their case or that you’re innocent.”

Harawa notes that the Supreme Court in the 1970s didn’t really grapple with the racist implications of non-unanimity.

“I do think the Court will at least recognize that Apodaca was wrong and this law had a nefarious purpose from the start and worked exactly how it was intended to work,” he said. “I just don’t think it’s something where the Court can or should turn a blind eye.”

The case is Ramos v. Louisiana, U.S., 18-5924, set for oral argument 10/7/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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