Justices Divided on Making Jury Unanimity Decision Retroactive (1)

Dec. 2, 2020, 5:18 PMUpdated: Dec. 2, 2020, 8:23 PM

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them.

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides.

Roberts told Edwards’ lawyer, André Bélanger, that the biggest hurdle he faced is that the court previously ruled the jury trial right itself didn’t apply retroactively. “What we’re talking about here is a subordinate right to a unanimous verdict, a lesser included right,” Roberts said.

It’s unclear how the newest justice, Amy Coney Barrett, will vote. She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity. Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively.

A decision in the case is expected by late June.

Louisiana Verdict

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison. The lone Black juror voted to acquit on all counts.

The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes. Nonetheless, those states, Puerto Rico—which also had them—and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.

That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals. Edwards and others seek relief on what’s called collateral, as opposed to direct, review.

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.

Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”

Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.

“You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said. “I mean, some of those people actually enforce laws in city court and--or do--you know, they collect money from--they do civil cases.”

Watershed Rights

One way for decisions to apply retroactively is if they reaffirmed an old rule. Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.

Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively. But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right—it has indicated the right to counsel that predated Teague could be one—leading Gorsuch to wonder if the watershed test is a “false promise.”

Alito said it reminds him “of something you see on some TV shows about the -- the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.

“I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the--and the one dissenter in the jury or the two dissenters in the jury were right?”

Kagan said “the empirics here are sparse, maybe surprisingly sparse, as to how this unanimity requirement works with respect to what I take to be the ordinary meaning of accuracy, which is simply a reduction in the error rate in trials.”

She told Bélanger “it seems like one’s intuition is not necessarily in your corner, that it might be that the unanimity rule allows more guilty people to go free than it--than it stops innocent people from being convicted, or at least it’s just not certain.”

And though she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.

“I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked.

Michel observed that other important rights have been passed over for retroactive application, like the jury trial right Roberts mentioned at the beginning of the argument.

Yet Roberts, who also dissented in Ramos, flipped his jury trial question to Michel. The chief justice asked, “Isn’t the right to a unanimous jury more important as a matter of factual accuracy than the right to a jury itself? I mean, you would expect a judge to be at least as accurate and presumably even more than a--a jury.”

The court could also avoid the retroactivity issue entirely. Some justices—at least Thomas, Alito, and Kavanaugh—expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

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

(Adds snapshot, argument detail. )

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

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com

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