New Jury-Unanimity Rule Stirs Debate on Retroactive Effect

A courtroom at the San Francisco Hall of Justice. (Courthouse News photo/Maria Dinzeo)

WASHINGTON (CN) — With justices from both party lines noting the racist overtone of divided guilty verdicts, the Supreme Court dug in Wednesday to whether to bestow retroactive effect on a recent ruling requiring unanimous jury verdicts.

Eight months earlier, the justices themselves were split 6-3 when the court ruled in Ramos v. Louisiana that verdicts from state juries must be unanimous. The case opened the door to new challenges from federal inmates in Louisiana and Oregon, where split-jury verdicts were allowed until 2018.

“A verdict by 11 is no verdict at all,” Andre Belanger, an attorney for one such inmate, argued before the high court this morning. 

Belanger represents Thedrick Edwards, a Black Louisiana man given a life sentence for armed robbery, kidnapping and rape after he was convicted 11-1 by his jury. The vote to acquit came from the lone Black juror on the panel.  

While Louisiana has defended the verdict, asserting that Edwards confessed to his crimes and was identified by one of his victims, Belanger told the justices Wednesday that life sentences demand unanimity from the jury.  

The nonunanimous jury system was set up to be unfair to Black defendants, Belanger said, and “even though the state has tried to cleanse itself, it still has a negative racially disproportionate impact today.”

The NAACP wrote to the justices in an amicus brief that Louisiana’s nonunanimous jury rule is one that, “by design and operation, undermined the integrity of the factfinding process by disregarding the voices of Black jurors epitomizes fundamental unfairness.” 

Nonunanimous juries started as a racially discriminatory practice, Justice Elena Kagan and Brett Kavanaugh agreed. 

Kavanaugh said that while there had been no challenge to the striking of all but one Black juror at Edwards’ trial, the facts of the case “certainly seem troubling.”

Kagan was more pronounced in her stance on what the new precedent means. 

Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” Kagan remarked. “And so how could it be that a rule like that does not have retroactive effect?”

The Trump administration argued the court’s decision in Ramos does not represent a watershed ruling that would allow for challenges to split verdicts reached in Louisiana and Oregon before the states amended their constitutions two years ago.  

“The fact that a constitutional rule is compelled by the text and history of the Constitution itself doesn’t mean that it’s retroactive on collateral review,” Assistant U.S. Solicitor General Christopher G. Michel argued this morning before the court. 

Louisiana, meanwhile, urged the court to recognize that a ruling favoring the petitioners would be unfair to the victims of crimes and burden federal prosecutors with retrials.

Such a ruling “unsettles thousands of cases that involved terrible crimes in all three jurisdictions — requiring new trials and long final criminal cases would be impossible in some, and particularly unfair to the victims of these crimes,” Louisiana Solicitor General Elizabeth Baker Murrill said. 

Murrill also pointed to amicus briefs from Oregon and Puerto Rico, where divided jury votes were also previously permitted, that warn of the significant impact on their systems as well. 

But Belanger, representing Edwards, said the criminal-justice system is “more than capable” of accommodating the caseload. 

If the Supreme Court rules Ramos does apply retroactively, Belanger said at most 1,600 Louisiana prisoners will be eligible to challenge their convictions. Likely around 1,000 will be able to establish that they were found guilty by a nonunanimous jury, he told the court. 

Louisiana’s solicitor general did not contest the numbers but said the premise of the argument that the state could simply grant new trials and distribute the cases across the board to federal prosecutors was disputed.  

The justices also had to grapple with the court’s ability to find Ramos retroactive under the standard established in Teague v. Lane, a 1989 decision that limits applying new rules retroactively when only a narrow set of procedural rights have been violated. 

“Once we answer the Teague question — that it’s watershed — it doesn’t matter how many cases there are. In fact, if it really were watershed, we’d expect there to be a considerable number right?” asked Justice Neil Gorsuch, who authored the majority opinion in Ramos.

Justice Amy Coney Barrett said it seemed “that it would be speculation here, too, to think that the case would have come out differently with the unanimous jury.” 

But at Edwards’ trial, the single Black juror voted not guilty on every criminal count, while a white juror voted not guilty on some counts, the attorney explained. 

“People that want to raise Ramos retroactively will have to come into court and show that they had a nonunanimous jury,” Belanger said. “And so there is no speculation.”

Barrett also expressed confusion over whether the challengers are arguing that unanimous verdicts ensure greater accuracy. Likewise Kagan questioned the certainty that the rule wouldn’t allow more guilty people to go free, rather than prevent against wrongful convictions. 

Louisiana argued a verdict reached by a majority of jurors does not “render a trial fundamentally unfair.”

“Nor does it seriously undermine factual accuracy of the verdict. In some cases unanimity might improve accuracy, but in others, it might diminish it,” Murrill said. 

Still, Belanger returned to the argument that “a verdict by 11 is no verdict at all” within the intent of the Framers of the Constitution when they established the right to a trial by jury.  

Chief Justice John Roberts, meanwhile, said the biggest hurdle was that the Supreme Court had previously found that the right to a jury trial cannot be applied retroactively; he called the right to a unanimous verdict a “lesser-included right.” 

But Belanger argued a divided jury “flies in the historical tradition of this country.”

Responding to a question from Justice Clarence Thomas about the “mixed bag” of empirical evidence, the attorney said experimental studies suggest that the effectiveness of deliberation is cut short when a unanimous verdict is not required.  

“It leaves room for the premise that the system can be inaccurate and unfair,” the attorney added.

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