Welcome
The United States Law Week

Precedent Takes Center Stage in Unanimous Jury Argument (1)

Oct. 7, 2019, 7:32 PMUpdated: Oct. 7, 2019, 9:38 PM

A U.S. Supreme Court argument about whether states can convict defendants with non-unanimous juries evolved into a debate about precedent, an especially sensitive issue now that the justices will effectively contemplate the future of the abortion precedent Roe v. Wade this term.

Evangelisto Ramos may well go on to win his argument that his 10-2 Louisiana state murder conviction violates the U.S. Constitution, but the court needs to reckon with a 1972 decision that condoned non-unanimous convictions at the state level.

Early on in the Oct. 7 argument, Justice Samuel Alito brought up stare decisis—the Latin term signifying the court’s adherence to past decisions—noting that a majority of the court had recently been “lectured pretty sternly” on the issue. He mentioned cases where Democratic appointees complained in dissent about Republican-appointed majorities overruling precedents last term.

The issue is at the forefront of court watchers’ minds, after the justices Oct. 4 agreed to take up an abortion case—also from Louisiana—the first one the Roberts Court will decide with its newly fortified conservative majority following Justice Brett Kavanaugh’s confirmation a year ago.

Alito’s lament on the first day of the term could be seen as a challenge of sorts to the Democratic appointees, who might be more generally inclined to rule for criminal defendants. Ramos faces life-without-parole for the murder of Trinece Fedison, whose body was found stabbed and stuffed in a New Orleans trash can in 2014.

But questioning at the argument didn’t always fall along ideological lines, and it isn’t clear how the justices will decide the case, exactly.

Complicating matters is that the 1972 decision, Apodaca v. Oregon, was an unusual one. A single justice’s vote controlled the outcome, but on grounds that all of the other justices disagreed with. Justice Lewis Powell wrote in that case that the Sixth Amendment requires unanimity in federal trials but not state ones.

Adding yet another layer of complexity is that Louisiana, in arguing that it has a heavy reliance interest in upholding non-unanimous convictions that have already been secured, maintains that the Sixth Amendment doesn’t require unanimity at all.

That’s confusing, Justice Elena Kagan told state solicitor general Elizabeth Murrill, who warned that thousands of convictions are at stake if the high court rules for Ramos.

“Is that right, that you’re not asking us to accord Justice Powell’s solo opinion precedential force?” Kagan asked. “You have some strong reliance interests here, but—but your reliance interests are only relevant in the context of an argument from stare decisis.” Kagan is one of the alleged “lecturers” from last term, having penned a strong dissent in one of the cases to which Alito referred at the beginning of the argument.

Kavanaugh and Justice Neil Gorsuch also lobbed tough questions at Murrill, with the newest justice pointing to the racist history of non-unanimous verdicts.

Louisiana initially required unanimity. 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.

In Oregon, following 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 passed an amendment allowing split verdicts.

Louisiana voters last year passed a ballot measure outlawing such verdicts, but it applies to offenses committed starting this year, not retroactively. Oregon still allows them.

So defendants in those states hope the justices “incorporate” the Sixth Amendment’s jury unanimity right, meaning it would also apply in state trials, not just federal ones. Last term in Timbs v. Indiana, the high 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. Most protections are incorporated.

Justice Clarence Thomas, who usually doesn’t ask lawyers questions at arguments, wasn’t in the courtroom for the Ramos argument. Chief Justice John Roberts said it was due to illness, and that Thomas would participate in the decision, which is expected by late June.

The case is Ramos v. Louisiana, U.S., 18-5924, 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: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com