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Supreme Court Bolsters Unanimous Jury Rule in Louisiana Case (3)

April 20, 2020, 2:11 PMUpdated: April 20, 2020, 8:52 PM

State prosecutors need unanimous jury verdicts to convict criminal defendants of serious offenses at trial, the U.S. Supreme Court ruled in a dispute that fixes what criminal justice advocates had long-assailed as the injustice of allowing split verdicts.

Delivering Monday’s historic decision with a quirky lineup in tow, Justice Neil Gorsuch was joined to varying extents by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh. Justice Clarence Thomas concurred in the judgment. Justice Samuel Alito dissented, joined by Chief Justice John Roberts and partially by Justice Elena Kagan.

Advocates lauded the ruling, even if it came too late, in their view.

“We have been bringing challenges to Louisiana’s outlier split jury rule to the U.S. Supreme Court since 2004,” said Ben Cohen, the lawyer who brought the winning case to the high court, an appeal by criminal defendant Evangelisto Ramos. “We are heartened that the Court has held, once and for all, that the promise of the Sixth Amendment fully applies in Louisiana, rejecting any concept of second-class justice.”

Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School in Portland, Oregon, said the decision “has finally ended an unjust rule with a shameful past in Oregon.” She’d been fighting split verdicts there.

Louisiana and Oregon were the only states still allowing split verdicts, with reformers pointing to their regimes being steeped in racism and anti-Semitism, respectively.

Louisiana Attorney General Jeff Landry’s office, which argued the case at the high court, said after the ruling that the state’s law was based upon a previous Supreme Court ruling that allowed for non-unanimous juries.

“Our law has since been changed and the Supreme Court has now issued this new ruling,” Landry said in a statement. “Yet our focus remains the same: to uphold the rule of law and protect victims of crime. We will continue working to ensure crime victims in Louisiana receive the justice they deserve.”

Veteran Supreme Court lawyer Jeff Fisher, of O’Melveny & Myers and Stanford Law School’s Supreme Court Litigation Clinic, argued for Ramos.

Incorporation Now a ‘Given’

The legal question in the case—which state officials warned could ultimately upend thousands of non-unanimous convictions—was whether the Sixth Amendment’s unanimous jury requirement applies to the states through a process called incorporation.

It does, Gorsuch wrote, marking the latest Bill of Rights protection to get incorporated, following a trend at the high court.

Protections get incorporated if they’re fundamental to our scheme of ordered liberty or deeply rooted in the nation’s history and tradition, the court said last term in Timbs v. Indiana, when the justices incorporated the Eighth Amendment’s excessive fines ban. Most Bill of Rights protections are incorporated.

“I think this decision, coming on the heels of last Term’s Timbs decision, confirms that the incorporation doctrine is no longer seriously up for debate,” Fisher said. “The court now takes it as a given.”

Fisher, who’s argued over three dozen high court cases, added that the case is “a helpful reminder of the important role new Justices can play in setting the court’s docket, and not just outcomes on the merits.”

“One cannot know for sure,” he said, “but it looks from their votes like Justices Gorsuch and/or Kavanaugh may have been instrumental in the decision to grant cert here. Without finally getting that grant, we could not have prevailed on behalf of Mr. Ramos and all others in his place.”

Consequences and ‘Justice’

Though state officials raised alarms about thousands of convictions getting overturned if they lost the case, how many defendants will benefit from the high court’s ruling in Ramos’ favor will likely be the subject of further litigation.

He was convicted of murder in 2016 by a Louisiana state jury by a 10-2 vote. The state has since outlawed non-unanimous convictions for offenses committed beginning in 2019, but that move didn’t help convicts like Ramos, prompting him to seek relief in Washington.

Whether others likewise benefit remains to be seen, but that’s where Cohen and Kaplan are setting their sights next.

“The Promise of Justice Initiative is in the process of identifying all of the people who remain in custody as a result of an unconstitutional conviction,” Cohen said of his organization, “to find them lawyers, who can help remove this stain from Louisiana’s justice system.”

Kaplan said there are “certainly hundreds of cases in process right now where there will be challenges based on the Supreme Court’s ruling,” and that her law school clinic “is available to assist those with non-unanimous jury convictions who remain in custody along with those no longer incarcerated who wish to revisit their convictions.”

Gorsuch acknowledged that retrying or plea bargaining some non-unanimous convictions “will surely impose a cost.” But he pushed back against the states’ and the dissent’s claims of widespread disruption as a result of the decision.

In any event, the justice concluded with what he saw as a more important point.

“In the end,” he said, “the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that?”

Precedent Fight

In ruling for Ramos, the majority overruled a 1972 precedent, Apodaca v. Oregon, that had previously been cited to condone non-unanimous verdicts.

But the splintered ruling for Ramos served as a referendum of sorts on stare decisis, the principle that the court decides cases according to past precedent.

The issue has become a flash point at the high court in recent years, with the Democratic-appointed minority accusing the Republican-appointed majority of trashing the principle in a series of cases.

Those 5-4 lines are skewed in this case, with its patchwork of multiple justices writing opinions and joining parts of others, but the precedent issue will almost surely arise again when, for example, the court rules in an abortion case later this term. In addition to Thomas, Sotomayor and Kavanaugh also wrote separate opinions in this case.

Alito’s dissent, joined fully by Roberts, argues that “the doctrine of stare decisis gets rough treatment in today’s decision.” He said the majority “casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.”

Later in his dissent, in the part that Kagan didn’t join, Alito took aim at pronouncements from Democratic-appointed justices on precedent, before concluding that, “By striking down a precedent upon which there has been massive and entirely reasonable reliance in this case, the majority sets an important precedent about stare decisis. I assume that those in the majority will apply the same standard in future cases.”

The case is Ramos v. Louisiana, U.S., 18-5924, reversed 4/20/20.

(Adds statement from Louisiana Attorney General. Previous updates added comments from Kaplan, Cohen, and Fisher, and more opinion details.)

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

To contact the editors responsible for this story: Jessie Kokrda Kamens at; John Crawley at; Andrew Harris at