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What would be the retroactive effect if Ramos wins his case?

The Supreme Court heard arguments in Ramos v. Louisiana on October 7, 2019. The issue presented is "[w]hether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict."

The issue had been presented to the Supreme Court years ago in Apodaca v. Oregon, 406 U.S. 404 (1972), and the Court had split 4-1-4 on the issue. Four justices concluded that the Sixth Amendment requires unanimous verdicts, and that this right was fully incorporated and available to state defendants. Four justices did not believe that the Sixth Amendment required unanimous verdicts. Justice Powell concluded that there was a Sixth Amendment right to a unanimous verdict for federal defendants, but that this was one of the small number of constitutional rights that is not incorporated and binding on states. So Powell's vote, joined with the four justices who did not believe that the Sixth Amendment guaranteed unanimous verdicts, gave us a rule that federal verdicts must be unanimous, but state courts need not be.

U.S. military courts (which are not bound by the Sixth Amendment), Oregon, Puerto Rico, and (until this year) Louisiana have permitted non-unanimous jury verdicts in felony cases ever since. Ramos was convicted of second-degree murder on a 10-2 verdict. At some point (according to the Supreme Court Brief for Petitioner, "Upon learning of the jury's divided vote, Mr. Ramos moved for a new trial"; in any event, Louisiana makes no issue of timeliness), Ramos objected to the non-unanimous verdict, and raised the issue on direct appeal. Louisiana courts rejected the claim, citing Apodaca. The U.S. Supreme Court granted cert.

SCOTUSblog's Amy Howe wrote a review of the arguments that predicted that Ramos would win (Ramos pounced on Louisiana's concession of the incorporation argument). The question of the practical consequences of a decision favoring Ramos came up several times during arguments.

JUSTICE ALITO: Well, we don't know ... how a decision in your favor in this case would play out in collateral review, either in federal court or in state court. But do you think—I mean, I—I can well envision seeing you up here in a term or two arguing this is a water—the rule that you are trying to persuade us to accept today is a watershed rule of criminal procedure. Do you think that's a frivolous argument?
MR. FISHER: I don't think it's frivolous, Justice Alito. I think the best thing the state will have to say for itself in that respect is that Duncan itself, when the Court incorporated the right to jury trial, Duncan itself was not held to be retroactive in the DeStefano opinion, and in Schiro against Summerlin the court reaffirmed that precedent.
* * * *
MS. MURRILL: We have 32,000 people that are currently serving time for serious crimes. And each of these convictions would be subject to challenge if Apodaca is reversed.
* * * *

JUSTICE BREYER: [H]ave you any idea? Is there—with all the work gone into this, has anybody got any rough idea of what percentage of those people who are convicted are convicted by non-unanimous juries?

MS. MURRILL: There's just no reliable data ....
* * * *
We do know that we are already receiving a flood of these cases, as is this Court. We know that—you know, we filed 25 briefs in the Louisiana Supreme Court last Friday. So we have a—this case—this is certainly unsettling the cases, but because a number of those people pleaded guilty based on their expectation of potential—of facing a 10/2 verdict, the criminal defense attorneys filed an amicus brief arguing that point. We also have people who would receive—everyone that went to trial received this jury instruction. So we're not saying they all win.
* * * *
MR. FISHER: Thank you. I'd like to make a couple of quick factual points and then talk about stare decisis and reliance.
Justice Breyer, you asked a couple of questions about numbers and facts. So we say in our reply brief, using one of the state's own filings, that there are 36 cases on direct review right now in Louisiana where this issue has been presented.
And then even within those 36 is—even within that 36 you're going to have arguments about whether it was adequately preserved and all the rest. And so we think, at least in the direct review level, the numbers are actually quite modest and low.

So lets move ahead a bit, and assume that Ramos wins his case. Who benefits from the new rule? The impact is likely limited to persons convicted in Oregon and Louisiana (special issues make the application of Ramos to military and Puerto Rico defendants unlikely), but there are thousands of those.

retroactivity thumbnail Trialdex has a helpful Retroactive effect of new Supreme Court decisions litigation tool that you can use to predict the retroactive effect of a decision banning non-unanimous verdicts in state jury trials. Go ahead and give it a spin, but this is what you will come up with:

Ramos, as the prevailing party, gets the benefit of the new rule, and the rule applies to cases on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 322 (1987). However, even those defendants may encounter difficulties if the record below suggests a waiver or forfeiture of the issue.

Where the appeal clock has run out, and/or the conviction has been affirmed on appeal, the remedy is some sort of collateral attack. Initially, this should take place in state courts, which have their own rules (interestingly, the State of Oregon's amicus brief in Ramos raises and discusses an anticipated wave of direct appeal and federal habeas corpus proceedings without identifying state habeas corpus as a particular issue). Assuming that collateral relief is denied on the state level, recourse is available in the federal courts.

The federal remedy is sought by filing a petition for habeas corpus under 28 U.S.C. § 2254 ("State custody; remedies in Federal courts"). The trialdex retroactivity tool concludes that petitioners will run into the formidable barrier of persuading courts that the rule is "watershed." Here is how the reasoning goes:

  • Petitioners must show that they are in custody under a sentence on the date that the petition is filed. 28 U.S.C. § 2254(a). "Custody" does not require actual imprisonment; it also includes release that significantly restricts liberty. See Jones v. Cunningham, 371 U.S. 236 (1963) (parole).
  • Is it an old rule or a new rule? A rule is new when it breaks new ground or imposes a new obligation on the government. A rule is old if the result was dictated by precedent existing at the time the defendant's conviction became final, i.e., it would have been apparent to all reasonable jurists. A case does not announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts. See Chaidez v. United States, 568 U.S. 342, 347 (2013). A rule requiring unanimous verdicts in state cases would be a new rule.
  • Is the rule substantive or procedural? Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016). Procedural rules are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining culpability. Id. A rule requiring unanimous verdicts in state cases would be a procedural rule.
  • New procedural rules are not available on collateral review unless they are watershed. See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288 (1989).

The Supreme Court has never recognized a rule as being "watershed," and is unlikely to do so here. Watershed rules must be necessary to prevent an impermissibly large risk of an inaccurate conviction and alter the Supreme Court's understanding of the bedrock procedural elements essential to the fairness of a proceeding. Bockting, id. at 418. New procedural rules "generally do not apply retroactively" because they "do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Such fundamental rules are unlikely to emerge. Bockting, id. at 417.

The Supreme Court has often identified its decision in Gideon v. Wainwright, 372 U.S. 335 (1963) (indigent defendant's right to counsel) as the only rule which, if Gideon had been decided after Teague, would qualify as watershed. See United States v. Hopkins, 920 F.3d 690, 700 (10th Cir. 2019). Examples of new rules that are not watershed are listed in Bockting at 418, but some similar cases to Ramos include:

  • Mills v. Maryland, 486 U.S. 367 (1988) (invalidating capital sentencing schemes that required juries to disregard mitigating factors that are not found unanimously), not watershed per Beard v. Banks, 542 U.S. 406, 420 (2004).
  • Ring v. Arizona, 536 U.S. 584 (2002) (aggravating factor for death penalty must be proved to a jury rather than to a judge), not watershed per Summerlin, id.

The prediction here is that the class of persons who will get a retroactive benefit of the rule is limited to defendants in Louisiana and Oregon on direct appeal who can establish that they have not waived or forfeited the issue.

(10/21/19)

 
 
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