U.S.A. Supreme Court Decision: Ramos Versus Louisiana
Unanimous Jury Verdict Requirement Case. Attorney Fisher For Ramos.
Read the RAMOS VS LOUISIANA U.S.A. Supreme Court to see a Supreme Court struggling with an issue totally unaware there is mathematics that answers the specific questions they were asking about jury size, and jury vote accuracy. It is a tragic situation because of the damage caused from lack of awareness by lawyers, courts, and law schools of the Vote Accuracy equation or jury vote evaluation. Worse, the Supreme Court failed to apply the unanimity rule requirements to itself along with the conclusion of this case.
A public usually votes to elect a president, and a parliament votes to create a new law or to allocate a budget, and a Supreme Court or a court jury votes to decide a court case. For thousands of years, these votes have been done without measuring mathematically the accuracy of the vote. It is like buying a gun, to use against criminals, yet the gun has no accuracy, and every time the policeman fired at a violent attacker, an innocent person next to the criminal got killed because the gun accuracy was low. A vote with low accuracy does not kill or injure only one person, it injures millions of innocent humans at the same time. So, the question became: If there is a mathematical equation that measures precisely the accuracy of the vote, why are governments not using it? Why are mathematicians not yelling and asking governments to use it? Why for example in the U.S.A. Supreme Court case of EVANGELISTO RAMOS Versus Louisiana Filed on October 7, 2019, and decided on April 20, 2020: The U.S.A. Supreme Court decision states:
"RAMOS v. LOUISIANA
CERTIORARI TO THE COURT OF APPEAL OF LOUISIANA,
FOURTH CIRCUIT
No. 18 5924. Argued October 7, 2019 , Decided April 20, 2020
In 48 States and federal court, a single juror’s vote to acquit is enough to
prevent a conviction. But two States, Louisiana and Oregon, have long
punished people based on 10 to 2 verdicts. In this case, petitioner
Evangelisto Ramos was convicted of a serious crime in a Louisiana
court by a 10 to 2 jury verdict. Instead of the mistrial he would have
received almost anywhere else, Ramos was sentenced to life without
parole. He contests his conviction by a nonunanimous jury as an un-
constitutional denial of the Sixth Amendment right to a jury trial.
Held: The judgment is reversed."
End of the court decision.
The decision was made by a U.S.A. Supreme Court jury composed of 9 Supreme Court judges, with 6 judges voting 'yes' and 3 judges voting 'no'.
Even though the Supreme Court said unanimity is required in a jury vote, it failed to enforce this logic on itself. The USA Supreme Court failed to say that this decision applies to the Supreme Court as well.
These supreme court judges are supposedly some of the most learned and thoughtful individuals, and their decisions affects some 400 hundred million persons. And the rest of the world listens to what they say. So, the rest of the world is also unaware of the Vote Accuracy equation.
In the case arguments, we hear judges struggling with the issue of vote accuracy, completely unaware that there is a Vote Accuracy formula in existence. Here are parts of the Supreme Court transcript:
"Justice Kavanaugh: What about the size of the jury, if we were to accept your argument here, how or could we draw a distinction between this case and the precedence on size of a jury?
MR. FISHER: Well, Justice Kavanaugh, I think Williams itself tells you how you would do that. It says that the question under the Sixth Amendment is whether the feature at issue is an indispensable feature or, as the Court also put it, an essential feature of the right to jury trial as we practice it in this country. And what the Court concluded in Williams after looking at historical sources was they were mixed. And probably the better reading of those sources were the 12-person rule was just a historical accident...
Justice Ginsburg: Mr. Fisher, Williams, I think, is a problem for you. If only six minds need to agree to convict of a criminal offense, why shouldn't ten be enough?
MR. FISHER: Justice Ginsburg, the key principle is not how many. It's the degree of agreement. And so … my core proposition to you today is that a 10-2 verdict is less guaranteed to be accurate and less guaranteed to be consonant with the purposes of jury trial than a 6 (to) 0 verdict.
CHIEF JUSTICE ROBERTS: Well, I know. But, I mean, I guess I'm not sure that's self-apparent. I mean, I don't know whether you play it out in game theory or something, but if you asked the defendant, what do you want? Do you want six, and they have to agree across the board, or do you want 12, and you have got to convince --that's not immediately apparent to me … which I would take.
MR. FISHER: Well, Mr. Chief Justice, can I give you a legal answer and a practical answer?
So as a legal answer, the … unanimity required even of a six-person verdict is more consistent with, and, in fact, is the only consistent outcome with the purposes of the jury trial clause because the core purposes are effective deliberation towards an accurate decision"
In the final court ruling requiring unanimity, Justice Alito dissenting spoke of others who are not supporters of unanimity: He said "Some years ago the British Parliament enacted a law allowing non-unanimous verdicts ... The Constitution of Puerto Rico permits non unanimous verdicts ... Non unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. "
Again, instead of providing a purely mathematical rationale for these arguments, the Supreme Court judges, the lawyers in the case and internationally, no one seems to know or seems to care to know that there is a mathematical formula that can answer these questions precisely.
At some point, it becomes legitimate to ask "Are these people intentionally or unintentionally ignoring this formula?"
Listen to this audio book that explains the Jury Vote accuracy equation to a general public: https://youtu.be/G-1YkGHLPBc
Or on this website, go to the Vote Result calculator and enter some numbers to measure a U.S.A. Supreme Court vote accuracy, such as a vote that is 6 'yes' to 3 'no', or 5 to 4 or 9 to 0, and read all the related mathematics. You can learn so much about voting mathematics.
SUPREME COURT
OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - -
EVANGELISTO RAMOS, )
Petitioner, )
v. ) No. 18-5924
LOUISIANA, )
Respondent. )
- - - - - - - - - - - - - - - - - -
Pages: 1 through 69
Place: Washington, D.C.
Date: October 7, 2019
HERITAGE REPORTING CORPORATION
Official Reporters
1220 L Street, N.W., Suite 206
Washington, D.C. 20005
(202) 628-4888 www.hrccourtreporters.com 1 IN THE SUPREME COURT OF THE UNITED STATES
2 - - - - - - - - - - - - - - - - - -
3 EVANGELISTO RAMOS, )
4 Petitioner, )
5 v. ) No. 18-5924
6 LOUISIANA, )
7 Respondent. )
8 - - - - - - - - - - - - - - - - - -
9
10 Washington, D.C.
11 Monday, October 7, 2019
12
13 The above-entitled matter came on for
14 oral argument before the Supreme Court of the
15 United States at 1:00 p.m.
16
17 APPEARANCES:
18 JEFFERY L. FISHER, Stanford, California;
19 on behalf of the Petitioner.
20 ELIZABETH MURRILL, Solicitor General, Baton Rouge,
21 Louisiana; on behalf of the Respondent.
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C O N T E N T S
ORAL ARGUMENT OF:
JEFFREY L. FISHER, ESQ.
On behalf of the Petitioner
ORAL ARGUMENT OF:
ELIZABETH MURRILL, ESQ.
On behalf of the Respondent
REBUTTAL ARGUMENT OF:
JEFFREY L. FISHER, ESQ.
On behalf of the Petitioner
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P R O C E E D I N G S
(1:00 p.m.) CHIEF JUSTICE ROBERTS: We'll hear
argument next in Case 18-5924, Ramos versus
Louisiana.
Mr. Fisher.
ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER MR. FISHER: Mr. Chief Justice, and
may it please the Court:
Last term in Timbs against Indiana,
this Court reaffirmed the well-settled rule that
13 incorporated provisions of the Bill of Rights
14 apply the same way to the states as they apply
15 to the federal government.
16 Taking that rule as the given, the
17 state does not defend Justice Powell's pivotal
18 vote in the Apodaca case. And, indeed, that
19 reasoning flouted precedent at the time and has
20 since been relegated to nothing more than an
21 isolated relic of an abandoned doctrine.
22 The state's only defense in -- in
23 support of the judgment below is that the Sixth
24 Amendment does not require unanimity at all; that is, not in state courts or in federal
courts.
This Court should reject that
3 argument. As the Court has said many times over
4 many decades, the Sixth Amendment requires a
5 unanimous verdict to convict. In particular,
6 what the Court has said is that the Sixth
7 Amendment right to trial by jury carries with it
8 the essentials of the common law.
9 And the common law authorities are
10 uniform, explicit, and absolute. Unanimity is
11 an absolute requirement to trial by jury. And
12 the reasons that the common law commentators
13 gave for that rule are the -- are -- resonate
14 just as powerfully now as they did then. In a
15 nutshell, we are not prepared to take away
16 someone's liberty unless a cross-section of the
17 community uniformly agrees that criminal
18 punishment is appropriate.
19 Now, I don't think the state disputes
20 that historical account that I just gave you or
21 even that unanimity is central to the proper
22 functioning of the jury trial right. Instead,
23 what the state says are two primary things:
24 First, that the drafting history of
25 the Sixth Amendment suggests that the framers
meant to dispense with that historical rule,
2 and, second, that that historical requirement of
3 unanimity is no more important than the
4 12-person rule, which this Court said is not
5 part of the Sixth Amendment, in Williams.
6 So let me turn to those two arguments.
7 Let me start with the drafting history. And we
8 think for three reasons the state has over-read
9 the drafting history.
10 First, as the Court itself said in
11 cases dealing with provisions like the Second
12 Amendment and the Double Jeopardy Clause, we do
13 not read into a deletion of language any meaning
14 when there's no contemporary evidence that it
15 was designed to change the meaning of the
16 provision.
17 And that's all the more true here
18 because of the contextual backdrop. The state
19 talks about the fact that many states at the
20 time had trial by jury provisions in their own
21 constitutions and correctly notes that some of
22 those provisions explicitly required unanimity
23 but some of them didn't.
24 And the rule was the same across all of those states, so the thing that the framers
would have taken from the context at the time
2 would have been that it doesn't matter whether
3 you have unanimity in the provision; it requires
4 it either way.
5 CHIEF JUSTICE ROBERTS: Well, but
6 still that --
7 MR. FISHER: And I think --
8 CHIEF JUSTICE ROBERTS: I mean, to
9 give them -- to be fair, even if you see some
10 have unanimity, some don't, and you've got a
11 draft that says unanimity, I don't understand
12 why you would take it out and just then be able
13 to argue later, well, it doesn't matter whether
14 it was in or not. It's in there in the draft;
15 why would they take it out?
16 MR. FISHER: Well, the best historical
17 evidence, Mr. Chief Justice, is that it was --
18 it got latched onto a debate about the vicinage
19 requirement. And so what James Madison did is
20 take away all of the elaboration of the -- of
21 the right to trial by jury.
22 And so I think actually the best
23 example also to respond is -- is -- is the
24 Pennsylvania Constitution, which at the time of
25 the founding required unanimity explicitly. And
then Justice Wilson actually amended the --
2 rewrote the constitution in -- in Pennsylvania
3 to take it out. And, remember, Justice Wilson,
4 as we note at length in our brief, was one of
5 the leading expositors of the common law notion
6 of trial by jury and the Sixth Amendment
7 requiring unanimity.
8 And I think that was the last thing I
9 wanted to say about the drafting history, is
10 that one would think that if the framers had
11 dispensed with 400 years of uniform practice,
12 that somebody would have said something about
13 it. But what you have is the reverse. You have
14 Justice Wilson, right after the Constitution's
15 founding, talking at great length about how
16 unanimity is "indispensable."
17 You have Justice Story in his
18 Commentaries using exactly the same word,
19 "indispensable." And you have any number of
20 other criminal law treatises at the time, all of
21 which are gathered in our brief and at greater
22 length in the ACLU brief that canvasses the
23 history, all reinforcing this notion.
24 JUSTICE ALITO: You are asking us to overrule Apodaca, so we do have to think about
stare decisis. And last term, the majority was
2 lectured pretty sternly in a couple of dissents
3 about the importance of stare decisis and about
4 the impropriety of overruling established rules.
5 I'm thinking about the dissent in Franchise Tax
6 Board and the dissent in Knick versus Township
7 of Scott.
8 And a very important consideration in
9 considering stare decisis is reliance. So it
10 would be helpful to me if you could compare the
11 reliance that's at issue here. Louisiana and
12 Oregon have tried thousands of cases, in
13 reliance on Apodaca. The Court said: This was
14 okay. We've never -- we've never suggested that
15 it wasn't. We've denied cert in lots of cases.
16 So can you compare the reliance here
17 with the reliance in Franchise Tax Board and in
18 Knick?
19 MR. FISHER: Well, I think Justice
20 Alito, I'd like to make both a legal comparison
21 and a factual comparison.
22 So starting with the law, I think it's
23 important to note that the state here is -- is
24 claiming to rely on Apodaca, but they are not
25 defending the rule of Apodaca, which is that the
Fourteenth Amendment doesn't require states to
2 have unanimous verdicts. Instead, they're
3 asking the Court to adopt a new rule of Sixth
4 Amendment law that the Court has never adopted.
5 And I know the Court last term, as you
6 -- as you note, in part of those disagreements,
7 some justices were saying, well, it's okay to
8 come up and rehabilitate an old rule; that
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shouldn't forgo stare decisis value.
JUSTICE ALITO: Well, but that's --
MR. FISHER: But here the state is
asking for a brand-new rule.
JUSTICE ALITO: I -- I don't want to
interrupt. That's a fair point, but we're not
15 tied in deciding this case to the position
16 that's taken by the state. We have a decision
17 of this Court, Apodaca, and we could -- we could
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affirm it on -- on a different ground from the one that the -- the exact one the state has -- has advanced.
But I want you to complete what you
were saying.
MR. FISHER: Yeah, so let me give you
24 three reasons why, even if you take that as a -- as a given, stare decisis shouldn't carry the
1 day. And then I'll turn to the facts.
2 But still sticking with the law, three
3 things: One is remember Justice Powell's vote
4 was an isolated vote where there was no majority
5 for the Court, and it was -- indeed, his vote
6 was rejected by the other --
7 JUSTICE KAGAN: So could I ask you --
8 MR. FISHER: -- eight justices on the
9 Court.
10 JUSTICE KAGAN: This is so unfair, Mr.
11 Fisher, but could I ask you to take that out of
12 your analysis and just pretend for the remainder
13 of your analysis, I -- I think that's an
14 important consideration, which I'm not quite
15 sure how to think about, but if you assume that
16 this was, you know, just any old 5-4 decision.
17 MR. FISHER: So I would then move to
18 my second point, which would be that the -- the
19 -- that Fourteenth Amendment rule, even if it
20 had been adopted by a majority, is a derelict in
21 the law. It is isolated -- it is really an
22 abandoned relic of past jurisprudence. And you
23 don't have to look further than last term in
24 Timbs. You can look at the McDonald opinion and 25 you can look at any number of other --
1 JUSTICE KAGAN: Well --
2 MR. FISHER: -- opinions from this
3 Court that say the same standards have to apply
4 to the states as the federal government.
5 JUSTICE KAGAN: I mean, it would be an
6 outlier. It would be something that says, look,
7 we just -- we have an exception here. We -- we
8 are going to treat this amendment differently.
9 But you know we tolerate a pretty
10 significant degree of diversity in state
11 criminal procedure, and this could just be one
12 of those sorts of rules, where -- where we say
13 you -- you know, there are occasional times
14 where we think that the state gets to decide
15 something on its own. And so, yeah, it's
16 anomaly. Usually, we do look in stare decisis
17 reasoning for anomalies, but this is not the
18 kind of anomaly that should concern us overmuch
19 because, in general, criminal procedure law is
20 loaded with anomalies.
21 MR. FISHER: Well, Justice Kagan, I
22 think -- let me respond one thing I hope isn't
23 fighting the premise, but what I would say is if
24 the -- if you look at the Court's incorporation
jurisprudence, that is the one place the Court
has not accepted anomalies and where the Court
2 has said that stare decisis is at a very low ebb
3 when it comes to states following the
4 fundamental rules of the road of the Bill of
5 Rights. So I think on that level, it is a
6 different kind of a situation than the ordinary
7 stare decisis case.
8 JUSTICE GINSBURG: Did Timbs recognize
9 that exception?
10 MR. FISHER: Pardon me?
11 JUSTICE GINSBURG: Timbs, in saying
12 the Excessive Fines Clause applies to the
13 states, recognize Apodaca as an exception?
14 Recognized the Sixth Amendment was the one
15 exception to complete incorporation?
16 MR. FISHER: That's right, Justice
17 Ginsburg. And I think my argument today is that
18 even though that's been an exception for several
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years, it shouldn't go forward.
It doesn't have any footing in the
law. There's no --
JUSTICE KAGAN: What else have you
got?
MR. FISHER: -- Fourteenth Amendment
footing. So let me turn to the -- to I think
back to Justice Alito's question, because I
2 think you were asking about convictions.
3 And I think this is another area where
4 stare decisis actually has less to say than
5 normal. And that's because the Court already
6 has a developed set of doctrines, like the
7 Teague jurisprudence and the Griffith
8 jurisprudence that are themselves designed to
9 give states reliance interest in their past and
10 past precedent from this Court.
11 So unlike the ordinary case, Franchise
12 Tax Board and any number of other doctrines, you
13 have this whole separate set of doctrines that
14 the state can invoke to support its reliance
15 interest --
16 JUSTICE ALITO: Well, we don't know --
17 MR. FISHER: -- in those past
18 convictions.
19 JUSTICE ALITO: -- how a decision in
20 your favor in this case would play out in
21 collateral review, either in federal court or in
22 state court.
23 But do you think -- I mean, I -- I can
24 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
2 watershed rule of criminal procedure.
3 Do you think that's a -- a frivolous
4 argument?
5 MR. FISHER: I don't think it's
6 frivolous, Justice Alito. I think the best
7 thing the state will have to say for itself in
8 that respect is that Duncan itself, when the
9 Court incorporated the right to jury trial,
10 Duncan itself was not held to be retroactive in
11 the DeStefano opinion, and in Schiro against
12 Summerlin the Court reaffirmed that precedent.
13 But, Justice Alito, the core point
14 that I'm making to you today is, in deciding
15 whether to overrule a past case, absolutely
16 reliance interests are at stake.
17 But there are separate doctrines to
18 protect those reliance interests, so that I
19 don't think you should give them undue weight in
20 this situation. And I don't think the Court has
21 given those kinds of things undue weight in the
22 past. And I would direct the Court back to its
23 McDonald decision where it catalogued all the
24 times over the years in the Court's incorporation jurisprudence that it has
1 overruled past cases.
2 And I don't think there is any other
3 area of law in the Court's jurisprudence where
4 stare decisis over the years has held less value
5 than --
6 JUSTICE KAVANAUGH: What about --
7 MR. FISHER: -- incorporation.
8 JUSTICE KAVANAUGH: Sorry.
9 MR. FISHER: No, go ahead.
10 JUSTICE KAVANAUGH: What about the
11 size of the jury, if we were to accept your
12 argument here, how or could we draw a
13 distinction between this case and the precedence
14 on size of a jury?
15 MR. FISHER: Well, Justice Kavanaugh,
16 I think Williams itself tells you how you would
17 do that. It says that the question under the
18 Sixth Amendment is whether the feature at issue
19 is an indispensable feature or, as the Court
20 also put it, an essential feature of the right
21 to jury trial as we practice it in this country.
22 And what the Court concluded in
23 Williams after looking at historical sources was
24 they were mixed. And probably the better reading of those sources were the 12-person rule
1 was just a historical accident.
2 And so that is a holding of this Court
3 that puts it on the other side of the ledger
4 from the uniform common law authorities when it
5 comes to unanimity and that holding, moreover,
6 Justice Kavanaugh, would be entitled to a stare
7 decisis effect.
8 JUSTICE KAGAN: Do you think --
9 JUSTICE GORSUCH: What -- what --
10 JUSTICE KAGAN: -- we would have to --
11 JUSTICE GORSUCH: Sorry.
12 JUSTICE GINSBURG: Mr. Fisher,
13 Williams, I think, is a problem for you. If
14 only six minds need to agree to convict of a
15 criminal offense, why shouldn't ten be enough?
16 MR. FISHER: Justice Ginsburg, the key
17 principle is not how many. It's the degree of
18 agreement. And so my -- my core proposition to
19 you today is that a 10-2 verdict is less
20 guaranteed to be accurate and less guaranteed to
21 be consonant with the purposes of jury trial
22 than a 6-0 verdict. And I think --
23 CHIEF JUSTICE ROBERTS: And that's --
24 MR. FISHER: -- maybe it would help -- CHIEF JUSTICE ROBERTS: You prefaced
1 that by saying that's a key part of the
2 distinction you are trying to draw?
3 MR. FISHER: Well, I -- maybe it is
4 the very distinction.
5 CHIEF JUSTICE ROBERTS: Well, I know.
6 But, I mean, I guess I'm not sure that's
7 self-apparent. I mean, I don't know whether you
8 play it out in game theory or something, but if
9 you asked the defendant, what do you want? Do
10 you want six, and they have to agree across the
11 board, or do you want 12, and you have got to
12 convince -- that's not immediately apparent to
13 me which -- which I would take.
14 MR. FISHER: Well, Mr. Chief Justice,
15 can I give you a legal answer and a practical
16 answer?
17 So as a legal answer, the -- the
18 unanimity required even of a six-person verdict
19 is more consistent with -- and, in fact, is the
20 only consistent outcome -- with the purposes of
21 the jury trial clause because the core purposes
22 are effective deliberation towards an accurate
23 decision and a cross-section of the community.
24 Now, remember what happens in
Louisiana and in Oregon is that a cross-section
of the community, somewhat by design, can be
2 left out of and canceled out of those
3 deliberations. And that's very different than a
4 6/0 verdict when it comes to the way things
5 happen in the jury room and the public
6 confidence in that verdict.
7 And I'll also give you a practical
8 answer to your question. When Louisiana was
9 considering changing its law, and, indeed, did
10 change its law, which I would say
11 parenthetically is also something that I think
12 should be taken into account when it comes to
13 stare decisis, that Louisiana has even changed
14 its law, but during those deliberations there
15 was a prosecutor who testified before the
16 legislature and said that he used to sometimes
17 charge felonies instead of misdemeanors because
18 it was easier to get a 10-2 verdict than it was
19 to get a 6-0 verdict.
20 JUSTICE GORSUCH: Mr. Fisher, let's
21 say I am not entirely persuaded by your
22 functionalist arguments about the distinction
23 between unanimity and numbers between this case
24 and Williams.
Have you got anything else besides
1 these functionalist arguments about the real
2 great importance about unanimity and the
3 relative lack of importance about numbers?
4 MR. FISHER: I think what I would say
5 to you, Justice Gorsuch, is the text of the
6 Sixth Amendment understood through its purpose
7 distinguishes this case from Williams. And so
8 let me explain what I mean by that.
9 The text of the Sixth Amendment says
10 the defendant has a right to trial by jury. And
11 so the key is what does that phrase mean? And
12 from history we know that that phrase meant that
13 not just that the defendant got a jury, but that
14 the trial by jury included the way the jury
15 reached its decision.
16 In fact, if we -- if we have a jury
17 who hangs or can't reach a verdict, there's a
18 mistrial. So we don't even have trial by jury.
19 So that's inherent in the term.
20 I think what the Court said in
21 Williams is that of course there are going to be
22 some features of the common law. Imagine, for
23 example, that the justice -- that the jurors all
24 had to wear a particular color jacket to -- to courtroom. There is going to be certain
incidental features of the right to jury trial
2 that don't necessarily have to be read along
3 with the Sixth Amendment.
4 There would be certain things that
5 happened to occur at common law that wouldn't
6 necessarily be brought forward today.
7 Now, I think maybe what you're --
8 you're driving at to some degree is I think
9 there is an argument and there was a powerful
10 argument made in Williams that 12 -- that the
11 12-person requirement shouldn't be thought of
12 that way. There were some people who thought
13 the 12-person requirement was also a very
14 important feature.
15 But, of course, there were others who
16 didn't. Lord Coke, which the Court quoted, and
17 many other commentators thought, well, no, 12
18 people is just a fanciful number. It's
19 inherently arbitrary. It doesn't really mean
20 anything. And so all we're getting at in this
21 case I think are what's the core meaning of the
22 phrase -- phrase trial by jury.
23 JUSTICE ALITO: If the --
24 JUSTICE KAGAN: Do you think, Mr.
Fisher, that we would also have to overrule
Ludwig versus Massachusetts if we overruled
2 Apodaca?
3 If I understand it right, that was
4 another case in which Justice Powell's unusual
5 approach to incorporation ended up being the
6 deciding vote in the case. It was about a
7 two-tiered jury system.
8 MR. FISHER: That's right, Justice
9 Kagan. I think that all my position here today
10 would tell you, if you were to revisit that, is
11 that -- is that Justice Powell's vote in that
12 case, just like in this case, doesn't set up a
13 rule of law the Court should adhere to. But you
14 would still have a separate Sixth Amendment
15 question in Ludwig which the Court -- I'm sorry
16 -- which the Court divided on and you'd -- you
17 would consider that case on its own terms.
18 And to be perfectly candid with you, I
19 don't even know what the common law would say
20 about the two-tiered jury system. That was not
21 something the Court considered in that case and
22 it would be a whole different set of arguments.
23 JUSTICE KAGAN: You --
24 JUSTICE GORSUCH: Do you --
JUSTICE KAGAN: You -- you started off
and then I told you to stop, but I thought I'd give you an opportunity to do it again.
3 I mean, what are we to make of this
4 4-1-4 reasoning of Apodaca and -- and -- and
5 what do you think the rule should be about stare
6 decisis going forward? Do you need a majority?
7 Do you just need a controlling rule? What's --
8 what's the right way to think about that?
9 MR. FISHER: Well, I can tell you what
10 I think and I can tell you what the Court has
11 done. I think that there are times where a
12 single vote could be accorded stare decisis
13 effect, particularly if it's comfortably a
14 narrower ground within the Marks rule.
15 But then you have other cases more
16 like this where Marks doesn't so easily fit onto
17 that system. And I think that the most recent
18 time the Court dealt with a situation like that
19 was the Hughes case a couple terms ago, where
20 you had a 4-1-4 vote in the prior case and what
21 the Court said is we're going to consider this
22 issue fresh.
23 The Court did the same thing in
24 Seminole Tribe. And -- and Seminole Tribe is a good example of a case that drew deep divisions
within the Court as to what the substantive meaning of the Eleventh Amendment was. But
3 Justice Souter in his dissent said I do not
4 begrudge the majority for considering this issue
5 fresh, because there was no majority of the
6 Court that had proper -- that had previously
7 spoken to it and our votes were all over the
8 map.
9 JUSTICE ALITO: Well, what about a
10 party that has to make decisions about how it's
11 going to order its affairs in the wake of a
12 decision that it wins but does it in a 4-1-4
13 decision? What are they -- what is that party
14 supposed to do? Say, well, all right, we won
15 this case, but we really can't rely on it
16 because we don't know what -- because it has no
17 stare decisis effect, and then what happens as
18 the years go by and nothing happens, the Court
19 doesn't come back to that question?
20 MR. FISHER: Well, Justice Alito, I
21 think that at least in the ordinary case, the --
22 the -- the party would have every -- every right
23 to rely on this Court's decision, subject to the
24 ordinary principles of stare decisis that we're deciding.
I think the one thing that makes this
case unusual is you would think that if the
3 party did rely on that prior case they'd at
4 least come up and defend it instead of ask the
5 Court for a different rule.
6 And I think that just tells you
7 something about how -- how discredited the fifth
8 vote in this -- in this case is, which I think
9 makes it almost a universe of one. I can't
10 think of -- I -- I've looked and I haven't found
11 any other case where somebody has gone to --
12 come up to this Court and said: I'm not even
13 going to make an argument based on the provision
14 of the Constitution on which the previous
15 decision rests. That --
16 JUSTICE ALITO: Can I come back to the
17 -- the math question that was alluded to
18 earlier? I am not myself, I must confess,
19 capable of doing this math, but somebody could.
20 So if you hypothesize a jury pool with
21 a certain percentage of jurors who were inclined
22 to acquit, and you ask is there a greater
23 likelihood of acquittal with a 6-0 verdict than
24 a 10-2 verdict or an 11-1 verdict or if the state decides to have a jury that's bigger than
1 12, a 15-1 -- a 15-person injury, 14-1; 19-1,
2 when we get to the point where the chance of
3 acquittal is -- is in favor of the non-unanimous
4 rule, would that be unconstitutional?
5 MR. FISHER: My rule is that any time
6 the state deviates from unanimity, it is
7 unconstitutional, so even if a state were to go
8 beyond the number of 12. And I think the reason
9 why is because it's a different phenomenon when
10 somebody disagrees in the jury room.
11 And I don't mean to be presumptuous,
12 but I've heard some justices of this Court
13 remark there's a difference between a 9-0
14 opinion and an 8-1 opinion. When somebody puts
15 reasonable, good-faith views on the table and
16 requires an answer from the others, it sharpens
17 ones thinking, it leads to better results
18
19
20
21
22
23
sometimes --
JUSTICE ALITO: I mean, you really -- MR. FISHER: -- and at least in a jury
room, that would be case.
JUSTICE ALITO: You really want to
argue that? So if a -- if a petit jury had to
24 be as big as a grand jury and you were representing a criminal defendant, you would
rather -- you would say we want -- 6-0 is better
2 for us than 21 to 1?
3 MR. FISHER: Justice Alito, perhaps
4 there'd be a number where that argument would
5 start to be difficult, and I think that -- that
6 what I would tell you is the history and
7 tradition of this country makes it highly
8 unlikely that we're ever going to see a system
9 like that.
10 What we have uniformly, almost,
11 throughout the states is a ceiling of 12. And I
12 think -- you talked about a math problem. And I
13 think maybe it's also helpful to remind the
14 Court of the Court's term -- decision last term
15 in Flowers, where the Court talked about the
16 math of preemptory challenges.
17 And I think you have a similar math
18 problem here, which is if you have one or two
19 members of a minority on a jury, it could be a
20 racial minority, it could be a political
21 minority, it could be a religious minority, are
22 we really prepared to say that those one or two
23 votes can be utterly canceled out?
24 JUSTICE KAVANAUGH: Do the racial origins of this rule have an impact on how we
1 think about stare decisis in this case?
2 MR. FISHER: I think they do, Justice
3 Kavanaugh. I think --
4 JUSTICE KAVANAUGH: How? How do --
5 how should we factor those in?
6 MR. FISHER: I think in a couple ways.
7 I think, when you talk about how reasonable the
8 reliance is from the state, I think it's perhaps
9 justifiable to look at the origins of the law
10 that it's defending.
11 But I also think more directly, if
12 you're asking whether Justice Powell's
13 Fourteenth Amendment reasoning should stand, he
14 didn't even consider this history. I'm not sure
15 it was put in front of the Court. And as the
16 Court has said many other times like in
17 McDonald, like in Pena-Rodriguez, when we're
18 reading provisions of the Bill of Rights against
19 the states through the Fourteenth Amendment, the
20 history and purpose of the Fourteenth Amendment
21 is a salient way to --
22 JUSTICE ALITO: You really --
23 MR. FISHER: -- think that.
24 JUSTICE ALITO: -- want to make that argument? You made a big deal of it in your
brief.
2 I thought you'd -- I thought you would
3 abandon it here today. But if -- if another
4 state were to enact the same statute that
5 Louisiana has tomorrow and did it for all of the
6 legitimate policy reasons that have led such
7 entities as the American Bar Association and the
8 American Law Institute and lots of reputable
9 scholars and the framers of the Constitution of
10 Puerto Rico and the people who made the rule in
11 the United Kingdom, all of which allow
12 non-unanimous juries, if they -- if that was
13 enacted for that reason, that might be
14 constitutional, but this statute is not
15 constitutional and the Oregon statute is not
16 constitutional because of the -- the origin that
17 you a attribute to them?
18 MR. FISHER: No, Justice -- Justice
19 Alito. Let me make sure that I am clear with
20 the Court.
21 We think that purpose perhaps could
22 inform the Court's decision-making, and
23 particularly if you're looking at stare decisis,
24 it could inform whether to stick with an old
Fourteenth Amendment rule, but we don't think
1 it's essential to our Sixth Amendment argument.
2 And we think if a state had followed the old ALI
3 recommendation before the Sixth Amendment was
4 incorporated in the states, that I'd be making
5 all -- all the other same arguments I'm making
6 here today.
7 But I think the thing I would leave
8 you with, before I sit down for rebuttal, is
9 that it is telling, Justice Alito, I think, that
10 no state has ever done that. The only two
11 states that have ever deviated did -- did so
12 under circumstances where the cross-section of
13 the community that the jury trial was designed
14 to bring into the courtroom had changed. And
15 part of the design was to leave a part of that
16 cross-section, perhaps, out of deliberations.
17 JUSTICE KAGAN: You -- you mentioned a
18 couple of times earlier in your argument where
19 the Court has said that a decision is entitled
20 to less stare decisis effect because the parties
21 have come into Court and tried to kind of
22 improve the reasoning, so the Court has said, of
23 the earlier decision.
24 And as I understood what you were saying, you were saying that this even goes
beyond that.
2 MR. FISHER: Right.
3 JUSTICE KAGAN: Could -- could you
4 explain why or is it the same as that or --
5 because I've never liked that argument. So is
6 this just -- is -- is -- is your argument just
7 the same thing?
8 MR. FISHER: No. I think it's a step
9 further, Justice Kagan. I think even if you
10 believe that parties ought to be entitled,
11 especially when there's many years between an
12 old decision and a new one, to -- to make --
13 defend the old decision with the rhythms and the
14 precedents and the ideas that have intervened --
15 so, for example, to take a case like Citizens
16 United, perhaps the government could have come
17 in in that case and made other First Amendment
18 arguments in support of that statute in that
19 case.
20 I think we have here something
21 entirely different, though. The state is not
22 even making a Fourteenth Amendment argument.
23 They're asking the Court to adopt a rule -- and
24 let me just be clear, the rule that they're asking the Court to adopt is the Sixth Amendment
does not require unanimous verdict. Five
2 justices in Apodaca squarely rejected that
3 argument. And the Court, itself, in 14th -- 14
4 other opinions have rejected that argument.
5 JUSTICE GINSBURG: It was unsettled --
6 MR. FISHER: So, Justice Kagan, I
7 think this is different in kind.
8 JUSTICE GINSBURG: It was unsettled
9 until Apodaca. Unanimity question was not
10 settled until Apodaca, right? Well, because
11 four -- four of the justices there thought
12 unanimity was not required; four thought it was.
13 MR. FISHER: My --
14 JUSTICE GINSBURG: So it was Apodaca,
15 the fifth vote being Powell's vote, that said --
16 set the precedent for you to require a unanimity
17 in federal trials.
18 MR. FISHER: Let me say something
19 about before Apodaca and then after, Justice
20 Ginsburg. Before Apodaca, the Court had
21 squarely held in Andres in the 1940s that the
22 Sixth Amendment requires a unanimous verdict.
23 And it had said it many other times, but I think
24 in that case, it was integral to the holding.
And so what I understood the four-justice
plurality to be saying in Apodaca was doing what
2 Justice White had said in a footnote in Duncan
3 it could do, which is reconsider the old
4 precedents.
5 But even if I didn't have that, I
6 would have the five votes in Apodaca, Justice
7 Ginsburg, and the statements in cases like
8 Richard and Descamps later, where the Court has
9 cited Justice Powell's opinion as the law and
10 said that it settles the Sixth Amendment
11
12
13
14
15
16
17
18
19
20
question.
CHIEF JUSTICE ROBERTS: Thank you,
counsel.
Ms. Murrill.
ORAL ARGUMENT OF ELIZABETH MURRILL
ON BEHALF OF THE RESPONDENT MS. MURRILL: Mr. Chief Justice, and
may it please the Court:
We agree with Petitioner that this
case presents two issues: whether the Sixth
21 Amendment requires unanimity and, if so, whether
22 that requirement applies to the states.
23 The Court should decide this case on
24 the first issue because nothing in the text, structure, or history of the Sixth Amendment
requires unanimous jury verdicts.
Nor has this Court ever held that the
3 framers wholesale adopted the common law. In
4 fact, the Court has expressly rejected that view
5 in Hurtado with regard to the Bill of Rights and
6 in Williams. Those correct holdings, plus
7 historical evidence that the framers expressly
8 rejected unanimity and the Sixth Amendment, are
9 fatal to Petitioner's request to add back words
10 that the Senate rejected in 1789.
11 The reliance interests here are
12 overwhelming. Because the Sixth Amendment is
13 not a code of criminal procedure, over two
14 centuries of states -- two -- for two centuries,
15 states have adapted their criminal justice
16 systems to their particular circumstances, and
17 Louisiana for the last 50 years has specifically
18 relied on this Court's express approval of the
19 system that's challenged here today again.
20 We have 32,000 people that are
21 currently serving time for serious crimes. And
22 each of these convictions would be subject to
23 challenge if Apodaca is reversed. Overruling
24 Apodaca strikes -- would strike at the foundation of widespread state practices that
include indictment by information and juries of fewer than 12.
3 The beauty of our system, is that
4 people can change the rules. So if they now
5 want to require unanimity, they can do so. They
6 can amend their state laws, as Louisiana
7 recently did, or they can amend the federal
8 Constitution.
9 The judgment in Apodaca should be
10 affirmed. And I'm happy to take questions.
11 JUSTICE GINSBURG: Are you asking the
12 Court to take up a question that five justices
13 answered in Apodaca? That is, that the Sixth --
14 Apodaca, five -- there were five votes to say
15 that the Sixth Amendment requires jury unanimity
16 in federal trials.
17 You are asking to -- us to reject a
18 rule that five justices adhered to.
19 MS. MURRILL: Justice Ginsburg, we
20 don't think that Justice Powell's decision was
21 entirely clear with regard to the rule as it
22 would apply historically. We think the text is
23 very, very clear that unanimity was -- is -- is
24 not there and that it was rejected. So --
JUSTICE GINSBURG: But --
MS. MURRILL: -- we're happy --
3 JUSTICE GINSBURG: -- there were --
4 there were four justices who said unanimity was
5 required. And then there was Justice Powell,
6 who said unanimity is required in federal
7 trials. You are asking us to overturn that
8 position, that unanimity is required in federal
9 trials?
10 MS. MURRILL: Justice Ginsburg, we
11 don't believe that that was central to his
12 holding or to his position in his plurality
13 opinion. And -- and our position would be that
14 one justice's opinion that is not central to his
15 -- his plurality opinion plus four dissenters
16 does not -- is not equal to a holding.
17 JUSTICE GORSUCH: Then aren't we --
18 aren't we in -- having to address this fresh,
19 just as you really seem to want us to do? I
20 mean, that -- that -- that seems to me an
21 admission that we are in a proper place to -- to
22 take this up afresh.
23 If precedent weighs for anything, what
24 do we do with Andres? What do we do with those
14 cases throughout Supreme Court history that
seem to treat unanimity as part of the Sixth Amendment?
3 And what do we do as well with Hughes
4 and with Seminole Tribe and a lot of other cases
5 where we have been facing similarly splintered
6 decisions and the Court has come back and
7 addressed the question fresh without considering
8 stare decisis in those cases?
9 Sometimes the -- the Court can't reach
10 majority opinion. Sometimes it's just unable
11 to. And why doesn't a state take that risk when
12 it relies on a decision that is so splintered?
13 MS. MURRILL: Justice Gorsuch, I think
14 that Louisiana reasonably relied on a decision
15 of this Court that it -- that non-unanimous
16 juries were constitutional. They also did that
17 on the tail end of a decision by this Court in
18 Williams that found that a six-man jury was also
19
20
21
22
23
24
constitutional.
JUSTICE GORSUCH: Well, we're not
dealing with a --
MS. MURRILL: And -- and I don't --
JUSTICE GORSUCH: -- a six-person
jury, so we can put that aside. We're -- we're dealing with unanimity. And I -- I don't think
you're arguing that the Court did anything
2 improper in Hughes or did anything improper in
3 Seminole Tribe by taking up the question afresh.
4 And I'm just curious why it would be
5 different here and why the state shouldn't be
6 assigned some degree of risk, assuming risk, by
7 proceeding in this area on the reliance of one
8 -- one member of the Court's opinion that is
9 rather, I think fair to say, idiosyncratic?
10 MS. MURRILL: Well, for one thing, I
11 think that incorporation doctrine evolved over
12 time. So I'm not sure that the state was -- it
13 was -- it was reasonable to expect the state to
14 ignore an actual holding in a case and
15 anticipate that that would change over time.
16 So that's -- that's one response that
17 I have to that question.
18 My second response is that I think you
19 can take it up afresh. But -- but I also --
20 this is a non-textual --
21 JUSTICE GORSUCH: I appreciate -- I
22 appreciate that. That's helpful.
23 MS. MURRILL: Yeah.
24 JUSTICE KAGAN: Well, just on that,
General Murrill, so, I mean, you don't really
want us to take that up afresh, do you? I mean,
2 aren't you -- I'm sort of confused because there
3 is the sentence in your brief that says neither
4 party is asking the Court to accord Justice
5 Powell's solo opinion in Apodaca precedential
6 force.
7 Is that right, that you're not asking
8 us to accord Justice Powell's solo opinion
9 precedential force? Because if that's right,
10 then -- I mean, are you basically just saying to
11 me: Forget Justice Powell's opinion in Apodaca;
12 just decide what the Sixth Amendment requires?
13 MS. MURRILL: Justice Kagan, I -- I
14 think that given the evolution of incorporation
15 theory, we find ourselves in a position where it
16 is even more important to get the text right and
17
18
19
20
21
22
23
24
to get the history right.
So if -- if -- if that means taking
that issue up afresh --
JUSTICE KAGAN: But, you see -- MS. MURRILL: -- then we should do
that.
JUSTICE KAGAN: -- I think I agree
with Justice Alito. You have some strong reliance interests here, but -- but your
reliance interests are only relevant in the
2 context of an argument from stare decisis.
3 And I guess I would like to know then
4 how are your reliance interests relevant? What
5 argument from stare decisis are you making?
6 MS. MURRILL: Well, we think that the
7 text and the history do not include a
8 non-unanimous jury verdict. We think that
9 that's a constitutional -- that is a choice that
10 states can make.
11 JUSTICE KAVANAUGH: That's not --
12 MS. MURRILL: And so, you know, that's
13 -- we think that the -- the four Justices, plus
14 Justice Powell's decision, were a ruling that
15 said that it was not unconstitutional to have
16 non-unanimous jury verdicts and it was
17 reasonable for us to rely on that.
18
19
20
21
22
23
24 25
So we don't -- we don't entirely
disavow stare decisis. I mean, we still believe we have enormous reliance interests.
JUSTICE KAVANAUGH: You were relying
on Justice Powell's opinion in Apodaca. That's the only --
MS. MURRILL: We're also relying --
JUSTICE KAVANAUGH: For stare decisis
that must be what you're relying on, combined
2 with the other four that said the states don't
3 have to provide unanimous juries.
4 MS. MURRILL: Well, I think, Justice
5 Kavanaugh, that we're also relying on this
6 Court's opinions in -- in Williams and in
7 Hurtado that said that the Court -- that has
8 never adopted the common law wholesale.
9 I mean, that's --
10 JUSTICE GINSBURG: But you -- you --
11 MS. MURRILL: -- that is I think
12 critical to the analysis.
13 JUSTICE GINSBURG: Just to be clear,
14 you are not urging the Apodaca. You want us to
15 go back and say what the Sixth Amendment
16 requires, the -- the issue on which the Court
17 was divided, you want us to say unanimity is not
18 required in federal trials and it's not required
19 in state trials, and on that issue, what is your
20 view of the Seventh Amendment? Does the Seventh
21 Amendment require unanimity in civil trials?
22 MS. MURRILL: Justice Ginsburg, I
23 think the Seventh Amendment is a different
24 question. Its text is different. Its structure 25 --
JUSTICE GINSBURG: But just -- just
2 the --
3 MS. MURRILL: -- is different.
4 JUSTICE GINSBURG: -- the answer to my
5 question: Is unanimity required under the
6 Seventh Amendment in civil trials in federal
7 court?
8 MS. MURRILL: I don't believe that it
9 would be required in the Seventh Amendment but I
10 don't think you need to determine that here
11
12
13
14
15
16
17
18
19
today.
JUSTICE GORSUCH: Well --
MS. MURRILL: That's not the issue. JUSTICE GORSUCH: Well, this Court has
held --
MS. MURRILL: The issue is the Sixth Amendment.
JUSTICE GORSUCH: -- that it --
there's a -- there's a holding of the Supreme
20 Court that's over 100 years old so holding. And
21 so no reliance interests for anybody there?
22 MS. MURRILL: Justice Gorsuch, my
23 answer is specifically related to the text and
24 what the text would require. I'm not disputing
25 that there might be precedent that would apply
1 --
2 JUSTICE GORSUCH: Oh, okay.
3 MS. MURRILL: -- in the Seventh
4 Amendment.
5 JUSTICE GORSUCH: All right.
6 MS. MURRILL: I just --
7 JUSTICE GORSUCH: All right. So we
8 don't count precedent in the Seventh Amendment
9 but we do in this area on Justice Powell's
10 opinion.
11 Let's say the Seventh Amendment does
12 require a jury trial. In what universe does it
13 make sense to imagine that the framers of the
14 Constitution would have insisted on a jury trial
15 for civil cases where property is at stake but
16 not in criminal cases where liberty is at stake,
17 and lives?
18 MS. MURRILL: I -- I believe that the
19 structure and the history of both reach --
20 ultimately on the textual answer reach the same
21 result. I -- I -- I don't think that they
22 would.
23 JUSTICE GORSUCH: All right. You
24 disagree with the Supreme Court's analysis on the Seventh Amendment. I understand that.
But spot for me a moment that the
2 Supreme Court might have gotten the Seventh
3 Amendment right. Okay? It may be possible.
4 All right? In -- in what universe would the
5 rule be different for criminal cases?
6 MS. MURRILL: I -- I -- I don't think
7 necessarily the rule would be different. I
8 think that the -- that we have to look at what
9 the text and the history demand, and that when
10 we are talking about a non-textual right, I
11 think that it is very, very important that the
12 Court get the history right.
13 And the history tells us that this --
14 that unanimity was rejected for a reason, that
15 there were -- there was a very specific decision
16 that was made to reject unanimity. It was
17 proposed, it was rejected, it was debated, it
18 was discussed, it was a known issue, because
19
20
21
22
23
24 25
four states had --
CHIEF JUSTICE ROBERTS: How far --
MS. MURRILL: -- actually adopted
non-unanimity.
CHIEF JUSTICE ROBERTS: How far are
you willing to depart from unanimity? Would a 7-5 requirement be okay under your theory?
MS. MURRILL: Mr. Chief Justice, I
2 think this Court has established some of the
3 outer boundaries already in Williams and in
4 Burch and in Will -- and in Apodaca. So nine,
5 under Apodaca, 9-3 is okay.
6 I would -- I would also remind the
7 Court that Louisiana in reliance on this Court's
8 decision in Apodaca and in Johnson went and at a
9 constitutional convention the year after this --
10 that case was decided, discussed it, expressly
11 relied on it, and increased voting rules to
12 10-2.
13 JUSTICE SOTOMAYOR: Can we go back to
14 reliance a moment? Putting aside that in Janus
15 a couple of decisions from the Supreme Court put
16 the unions on notice that things should -- that
17 the constitutional theory was on shaky ground,
18 and here you have a series of cases, much older,
19 telling you that the incorporation theory was on
20 shaky ground.
21 But you're talking about a parade of
22 horribles if we rule against you. How about the
23 parade of horribles if we rule in your favor?
24 How do we decide what's at the essence of the common law jury trial?
Would issues like having a fair
2 cross-section of the community and the veneer be
3 in question? We have a case that says that's
4 incorporated. Or what about what we said in
5 Sullivan, that the Sixth Amendment jury right
6 requires a jury verdict of guilty beyond a
7 reasonable doubt?
8 None of those terms are in the
9 Constitution. None of those terms, as far as I
10 know, were part of the discussions at the
11 convention. Are they going to be open to attack
12 now, too, if we rule in your favor? There's no
13 history, there's no anything, except our sense
14 of what the essence of the common law right was.
15 MS. MURRILL: And --
16 JUSTICE SOTOMAYOR: Not our sense, but
17 the history of what happened and why.
18 MS. MURRILL: So I think, Justice
19 Sotomayor, that we have the text and what made
20 the cut after the debates over what was missing.
21 JUSTICE SOTOMAYOR: But the debates --
22 MS. MURRILL: So --
23 JUSTICE SOTOMAYOR: -- we have a bunch
24 of people who were in favor of the cuts telling
25 everybody else everybody understands that a
unanimous verdict is the standard.
2 So we have part of the constitutional
3 debate. Hamilton himself, who drafted it and
4 took out the right to a unanimous jury,
5 basically said during the -- the discussion it's
6 so self-evident, we don't need to include it.
7 So you're looking at --
8 MS. MURRILL: But --
9 JUSTICE SOTOMAYOR: -- history just in
10 terms of what was taken out, but without the
11 context of the discussion.
12 MS. MURRILL: Not exclusively, Justice
13 Sotomayor. I think we also would agree that due
14 process and -- and equal protection play a role.
15 I mean, we -- we don't have requirements anymore
16 that it's only 12 white male freeholders.
17 JUSTICE SOTOMAYOR: Exactly.
18 MS. MURRILL: So, you know, I think
19 that's an example of how we did not adopt the
20 common law in all of its -- its -- its
21 historical terms. We actually -- Congress
22 adopted some of that language over time. It was
23 not embedded in the Constitution.
24 So we -- we know that there was an
historical debate. We know that states had
adopted a different rule, and -- and then some
2 of them wrote this rule into their own state
3 constitution. So known debated problem.
4 There's a -- there -- Madison proposes
5 an amendment, thinks he solved this problem, and
6 then it gets rejected by the Senate. So --
7 JUSTICE GINSBURG: But it -- but why
8 was it rejected? I mean, one -- one account is
9 it was totally unnecessary. Everybody
10 understood a jury trial meant unanimous
11 agreement.
12 So we took it out because we didn't
13 want to clutter up the Constitution with
14 unnecessary statements. The words "jury trial"
15 themselves mean unanimous verdict.
16 MS. MURRILL: Well, Justice Ginsburg,
17 we did clutter it up with an impartial -- with
18 the word "impartial." And we did clutter it up
19 with a number of other terms.
20 And -- and I don't -- and I think that
21 the history showing that states felt that it was
22 important to write it into some of their
23 constitutions indicates that there certainly was
24 at least a view that -- that it should be
25 written in by some and not -- so I don't think
it's a fair reading to -- to assume that that
2 was simply because we would all know that it
3 would be there, especially because they knew
4 that they were writing a document for the
5 future.
6 JUSTICE KAVANAUGH: For the sake of
7 argument, assume that I think the Sixth
8 Amendment requires a unanimous jury. Just for
9 the sake of argument. What are your best
10 arguments, then, for why the right is not
11 incorporated, and relatedly your best arguments
12 for not overruling Apodaca, which is read, the
13 -- the opposing counsel says, to have allowed
14 the states to do that?
15 MS. MURRILL: Justice Kavanaugh, they
16 are concededly not very good. I mean, I -- I
17 think that based on Timbs, that we recognize
18 that this Court, at least at this point in time,
19 has taken a view of incorporation that says that
20 there's no daylight. So if you find that
21 unanimity is required, I find myself in a far
22 more difficult position --
23 JUSTICE KAGAN: Well, yes --
24 JUSTICE KAVANAUGH: What about --
JUSTICE KAGAN: -- and no --
MS. MURRILL: -- to make that
2 argument.
3 JUSTICE KAGAN: Yes and no, General
4 Murrill, because you have this stare decisis,
5 except you're giving it away. And I don't know
6 what to make of that --
7 MS. MURRILL: I --
8 JUSTICE KAGAN: -- because I would
9 think what you would do is to say something
10 like: This is an outlier in our incorporation
11 doctrine. There's no question that it is. But
12 it has been an on outlier for 50 years. It has
13 been completely administrable. It has been
14 completely clear. States have had every right
15 to rely on this for 50 years. It doesn't matter
16 whether it was wrong because overruling
17 something requires more than just the decision
18 be wrong. It has been there. States have
19 relied on it. There's no reason to change it.
20 The end. Stare decisis.
21 But you're telling me that Justice
22 Powell's opinion isn't entitled to precedential
23 force, isn't entitled to stare decisis effect.
24 So I don't know what to do with that argument anymore.
1 MS. MURRILL: Justice Kagan, I agree
2 with everything that you said about the reasons
3 why this Court should affirm Apodaca and that it
4 should be given stare decisis effect.
5 I -- I think that we are struggling
6 with the fact that Justice Powell's decision
7 doesn't seem to be the view of the Court and --
8 and that it -- the text and the history also, I
9 -- I strongly and firmly believe, are on our
10 side.
11 JUSTICE ALITO: Well, you're not the
12 only state who has an interest here. And, in
13 fact, there's only one state going forward as of
14 this moment that has an interest in this, and
15 that's Oregon. And Oregon might change its rule
16 or it might not change its rule.
17 But Oregon filed a brief and Oregon
18 doesn't make the arguments you're making.
19 Oregon says it should be made clear what this
20 brief does not do. It does not address the
21 merits of whether Apodaca was correctly decided.
22 MS. MURRILL: I -- and I think that
23 Oregon finds itself in a position where the
24 democratic process has stalled in anticipation of this decision. So they've -- they've written
1 a brief that expressly, I think, emphasizes all
2 of our reliance interests. Puerto Rico has
3 similar reliance interests. There's a long line
4 of cases that dealt with territorials and the
5
6
7
8
9
10
11
12
right -- and the Constitution's application to territories. They have similar interests too.
So we -- we do think that the reliance
interests are very, very important.
JUSTICE ALITO: I mean, it's true --
MS. MURRILL: We believe that the
judgment was correct.
JUSTICE ALITO: It is certainly true
13 that we, in recent years, have rejected the
14 two-track idea about incorporation, but the
15 opposite isn't a crazy argument. As recently as
16 McDonald, there were some voices on this Court
17 that it was -- were essentially making that
18 argument with respect to the Second Amendment.
19 And earlier, there were -- it's a very
20 respectable argument. It hasn't won the light
21 -- it -- it hasn't won the day completely, but
22 that's what Apodaca rests on.
23 MS. MURRILL: Well, Justice Alito, if
24 you're telling me that there is a little bit of daylight, then I'll take it. I mean, I -- I
think that, you know, we -- but I also believe
2 the history -- that -- that the history shows
3 that unanimity was rejected and that that is the
4 correct view.
5 CHIEF JUSTICE ROBERTS: Is --
6 MS. MURRILL: So I -- I -- we are not
7 entirely repudiating the -- the Apodaca
8 judgment. And we do have 50 years of reliance,
9 which is why I emphasize that we have 32,000
10 people who are incarcerated right now at hard
11 labor for serious crimes, and every one of them
12
13
14
15
16
17
18
19
would be subject -- would -- would be able to file an appeal.
JUSTICE BREYER: Do you think 32,000
people were non-unanimous?
MS. MURRILL: No, no, no, Justice Breyer.
JUSTICE BREYER: Or how -- I mean, I
can't -- I don't understand why it would apply
20 to people who were unanimously convicted, maybe,
21 but -- but I think the stronger case would be
22 those people convicted by juries that were not
23 unanimous. And how many of those are there?
24 MS. MURRILL: We don't know, because they --
JUSTICE BREYER: I mean --
MS. MURRILL: -- there wasn't --
3 JUSTICE BREYER: -- have you any idea?
4 Is there -- with all the work gone into this,
5 has anybody got any rough idea of what
6 percentage of those people who are convicted are
7
8
9
10
11
12
13
convicted by non-unanimous juries?
MS. MURRILL: There's just no reliable
data.
JUSTICE BREYER: Well, if there's -- MS. MURRILL: But I can --
JUSTICE BREYER: -- no reliable data,
we'd think -- can I fairly think if there had
14 been some data, even if you just take a sample,
15 you would be telling us? And, therefore, the
16 fact that you're telling us that there are a lot
17 of people in jail, which I did know --
18 MS. MURRILL: Well --
19 (Laughter.)
20 JUSTICE BREYER: -- that that suggests
21 something.
22 MS. MURRILL: Well --
23 JUSTICE BREYER: Now, then you say
24 there's you, there's Oregon, that they're waiting. All right. But Puerto Rico is a tough
case, actually. There's a Hispanic tradition, and I don't know, you might have to bring up the
3 Insular Cases. You might -- you might have to
4 revise them. You might have -- get into the
5 status question. Puerto Rico is worrying me.
6 So is there -- is there something you
7 want to say about that since you raised it?
8 MS. MURRILL: Well, we have the same
9 tradition, but I -- but the -- the --
10 JUSTICE BREYER: You have the same
11 tradition, but you don't have as a matter of
12 fact the whole system of trials that grows out
13
14
15
16
17
18
of the civil tradition. Or is it --
MS. MURRILL: Well, that's why I think
all 32,000 --
JUSTICE BREYER: Well, all right, skip
that. That wasn't --
MS. MURRILL: -- are at risk because
19 we do have a system built around --
20 JUSTICE BREYER: I got past the
21 32,000. I now want to know, since you've looked
22 into Puerto Rico, is there a particular problem
23 there if we overturn Apodaca?
24 MS. MURRILL: I believe --
JUSTICE BREYER: If we --
MS. MURRILL: -- there is.
JUSTICE BREYER: I know you believe
3 there is. I just want to know what there is,
4 rather than my making it up.
5 MS. MURRILL: Because the territorial
6 decisions were based on the authority of
7 Congress to write laws that were different for
8 territories notwithstanding the fact that they
9 still came under the protection of the
10 Constitution, I think that there's a problem.
11 So it's the same -- I mean, the issue
12 here is, does the -- the Sixth Amendment require
13 unanimity? And unless you're going to continue
14 a special carveout for the territories, then
15 they have the same question.
16 CHIEF JUSTICE ROBERTS: Is the -- the
17 32,000 -- is the reason you don't know because
18 the jury is not typically polled or -- or what?
19 MS. MURRILL: Because it is not always
20 polled and because the defense -- that is a
21 responsibility of the defense to do that. And
22 even in some cases where it may have been, it
23 may not have been recorded or kept. And so the
24 data -- the -- the case files are -- seem to be very inconsistent on this.
We do know that we are already receiving a flood of these cases, as is this
3 Court. We know that -- you know, we filed 25
4 briefs in the Louisiana Supreme Court last
5 Friday. So we have a -- this case -- this is
6 certainly unsettling the cases, but because a
7 number of those people pleaded guilty based on
8 their expectation of potential -- of facing a
9 10-2 verdict, the criminal defense attorneys
10 filed an amicus brief arguing that point.
11 We also have people who would
12 receive -- everyone that went to trial received
13 this jury instruction. So we're not saying they
14 all win. We are saying --
15 JUSTICE BREYER: All right. Maybe
16 I --
17
18
19
20
21
22
MS. MURRILL: -- that every one of
them could file. And it's like throwing --
JUSTICE BREYER: I -- I've got the --
the reliance point.
MS. MURRILL: Okay.
JUSTICE BREYER: The -- the -- if I
23 believe, one, contrary to what you say, assume
24 it, I believe that, in fact, the federal right
25 in the Constitution does include unanimity in
the Sixth Amendment.
Then, two, I think that thereafter it
3 was fairly clear in the law that same -- the
4 federal rules apply to states, if we
5 incorporate. But you do have a point if you say
6 there are anomalies in the law. And perhaps we
7 should leave the anomaly alone. And that's
8 where you bring in your reason, the reason being
9 that 32,000 people, et cetera, et cetera. Okay.
10 I've got that structure.
11 Is there any other instance you can
12 think of where, despite a contradiction, which
13 you're allowing under my assumptions to remain,
14 a legal contradiction, the Court says: Okay,
15 because let sleeping dogs lie; otherwise we get
16 serious harm?
17 JUSTICE SOTOMAYOR: Just a footnote.
18 That's not taken care of by Teague and the other
19 doctrines your adversary talked about.
20 MS. MURRILL: Your Honor, I think that
21 one of the -- the -- the significant lines of
22 jurisprudence that comes to my mind is Rowe. I
23 mean, I -- I, you know, hesitate to bring that
24 into this, but I -- I do think that's an area
25 and I think that any time you have a non-textual
right that -- that the Court has relied on, discussed, related to in passing, I mean, or --
3 or quoted in passing over time and changed the
4 incorporation doctrine, that it is that much
5 more important to get the text and the history
6 right.
7 So we think that Apodaca was -- that
8 the judgment in Apodaca was correct. We do have
9 enormous reliance interests --
10 JUSTICE GORSUCH: Counsel, on --
11 MS. MURRILL: -- involved.
12 JUSTICE GORSUCH: -- your reliance
13 interests, you say we should worry about the
14 32,000 people imprisoned. One might wonder
15 whether we should worry about their interests
16 under the Sixth Amendment as well.
17 And then I -- I can't help but wonder,
18 well, should we forever ensconce an incorrect
19 view of the United States Constitution for
20 perpetuity, for all states and all people,
21 denying them a right that we believe was
22 originally given to them because of 32,000
23 criminal convictions in Louisiana?
24 MS. MURRILL: No, Justice Gorsuch.
25 But we don't believe that it was a right that
1 was given to them in the Sixth Amendment.
2 JUSTICE GORSUCH: I understand that.
3 I'm talking about a reliance argument. Doesn't
4 that greatly diminish a single state's claim of
5 reliance with respect to a subset of criminal
6 convictions, when we're talking about a
7 constitution that's supposed to endure?
8 MS. MURRILL: No one, and least of all
9 me, is going to stand here and diminish anyone's
10 liberty interests. I -- I think that -- so I'm
11 not -- I -- I wouldn't take that position.
12 But even in a long line of this
13 Court's significant decisions related to
14 criminal law and criminal procedure, the Court
15 has applied them in a forward fashion instead of
16 retroactively. So, I mean, that's a concern for
17 us.
18 JUSTICE KAVANAUGH: Well, if the jury
19 --
20 JUSTICE GINSBURG: But that's --
21 that's not -- the case of retroactivity to
22 convictions that are already final is not before
23 us. It would come before us in a case if you
24 lose this one, but it -- that -- that is not a
25 question that we can properly address here. It
1 hasn't been briefed. It hasn't been decided
2 below.
3 MS. MURRILL: Justice Ginsburg, we
4 certainly do appreciate you not addressing that
5 issue without our opportunity to brief it. I
6 would point out that our law that we just passed
7 makes the law -- it -- it does draw a line and
8 it says that it will apply to all crime, that
9 unanimity will apply to crimes that were
10 committed after January 1st, 2019.
11 So to some extent we are talking about
12 at -- at least some retroactivity, because we've
13 already made a decision to address it going
14 forward.
15 JUSTICE KAVANAUGH: Can I pick up on
16 Justice Gorsuch's question a second?
17 So assume that the Sixth Amendment
18 requires unanimity. I know you disagree. And
19 assume that our law ordinarily requires
20 incorporation against the states of rights that
21 apply against the federal government. So assume
22 ordinarily it would be incorporated.
23 Then we get to the Apodaca question.
24 It seems to me there are two practical arguments 25 for overruling Apodaca if you accept that's
holding. One is, as Justice Gorsuch -- Gorsuch
2 says, there are defendants who have been
3 convicted and sentenced to life, 10-2 or 11-1,
4 who otherwise would have not been convicted. So
5 that seems like a serious issue for us to think
6 about in terms of overruling.
7 And the second is that the rule in
8 question here is rooted in a -- in racism, you
9 know, rooted in a desire, apparently, to
10 diminish the voices of black jurors in the late
11 1890s. So do either of those two -- and that
12 doesn't go to the Sixth Amendment. That goes to
13 the stare decisis angle.
14 Do either of those two things -- or I
15 guess I should say why aren't those two things
16 enough to overrule, if you accept the legal
17 premises, which I know you don't, but if you
18 accept those, why aren't those two things
19 enough? Again, unfairness to defendants and
20 rooted in racism.
21 MS. MURRILL: So as -- as to the first
22 question with regard to unfairness to
23 defendants, I just do not see how you can
24 separate this from the six-man jury that -- that
25 was approved of in Williams, which is a six-man
jury for all crimes less than capital, and six,
2 granted, unanimous rule but still only six, and
3 Louisiana's rule will -- still requires ten.
4 So I -- I don't think it's
5 fundamentally unfair, nor do I think that this
6 Court in any precedent has ever held that it is.
7 JUSTICE GINSBURG: But Williams held
8 that the number, the number of jurors was not at
9 the heart of the jury trial right. The Court
10 said it was a historical accident. It resembled
11 certain biblical references like 12 apostles, 12
12 tribes of Israel. There was nothing inevitable
13 about the number 12. But there was about the
14 requirement that, whatever the number is, they
15 all agree.
16 MS. MURRILL: Mr. Chief Justice?
17 CHIEF JUSTICE ROBERTS: You may
18 respond.
19 MS. MURRILL: Justice Ginsburg, I -- I
20 think that it was not an historical accident. I
21 would disagree with that -- that description.
22 I think that these two things were
23 married together in every description, the
24 number 12 and unanimous in every description, 25 have always --
JUSTICE GINSBURG: But, it's hard --
2 MS. MURRILL: -- been married
3 together.
4 JUSTICE GINSBURG: It's hard to say
5 you disagree when Williams described the number
6 12 as a historical accident. Did you just say
7 Williams was wrong in that respect?
8
9
10
11
12
13
14
15
16
MS. MURRILL: I think that
characterization of it was dismissive. That's all. Thank you. Thank you.
CHIEF JUSTICE ROBERTS: Thank you,
counsel.
Five minutes, Mr. Fisher.
REBUTTAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER
MR. FISHER: Thank you. I'd like to
17 make a couple of quick factual points and then
18 talk about stare decisis and reliance.
19 Justice Breyer, you asked a couple of
20 questions about numbers and facts. So we say in
21 our reply brief, using one of the state's own
22 filings, that there are 36 cases on direct
23 review right now in Louisiana where this issue
24 has been presented.
25 And then even within those 36 is --
even within that 36 you're going to have
2 arguments about whether it was adequately
3 preserved and all the rest. And so we think, at
4 least in the direct review level, the numbers
5 are actually quite modest and low.
6 And as the Court has described
7 throughout the -- the last half of the argument,
8 the retroactivity questions can be left for
9 another day and covered by their own reliance
10 doctrines.
11 You also asked about Puerto Rico.
12 In Footnote 10 of our brief, we note
13 that the Court held in Balzac that the right to
14 jury trial does not apply the same way in Puerto
15 Rico as to the states. And so that would be a
16 question about the Insular Cases. You're going
17 to be talking about that next week, perhaps.
18 But it's something that this case
19 doesn't -- doesn't necessarily address.
20 So as to stare decisis and reliance,
21 let me make a couple points about the state's
22 framing of its arguments and then talk about, I
23 think, Justice Kagan, your sort of alternative
24 framing of the arguments.
25 As to the state's framing of the
arguments, I think it's helpful to remember why
2 we have the stare decisis in the first place.
3 It's about settled expectations in the law.
4 And what we're asking you today to do
5 are to reaffirm two things the Court has said
6 many, many times over the years. One is the
7 Sixth Amendment requires unanimous verdict.
8 And, second, when an incorporated provision
9 applies to the states, it applies the same way
10 as it does to the federal government.
11 So to write that opinion all you have
12 to do is reaffirm what you said many, many times
13 under the law.
14 It is the state's position that it
15 would create upheaval as to the law. It would
16 raise questions like the one the Chief Justice
17 asked about whether seven to five is okay.
18 The state not only doesn't answer the
19 question in its brief, it provides no way, no
20 way to answer the question. And that would just
21 be one of many questions that would arise if you
22 agreed with the state's view.
23 So I think then you are left with the
24 alternative argument, that what about -- what
25 about putting a reliance interest into Apodaca
itself? I'm not sure, by the way, that Oregon
2 does that. I think it's also telling that
3 Oregon is not willing to defend. I know it
4 doesn't go the other way like the state does but
5 it certainly isn't willing to defend Justice
6 Powell's reasoning in Apodaca.
7 But let's imagine that argument were
8 in front of the Court. I think there is three
9 reasons why you would still overrule Apodaca.
10 The first is the one that a couple of
11 you mentioned, which is that it's not just --
12 it's not just the interests of the state that
13 have to be taken into account. It's the
14 interests of defendants.
15 And before we take away somebody's
16 liberty over 600 years of common law tradition,
17 and Sixth Amendment tradition, is we demand a
18 unanimous verdict, unanimous consent of a
19 cross-section of the community.
20 And that is important, as the social
21 science brief in this case shows, for accuracy,
22 public confidence, and all the rest. And so
23 those reliance interests, which -- by the way,
24 the state itself is not renouncing unanimous
25 verdicts; it maintains the ability under its law
to try anyone going forward for a crime
2 committed before January 1st, 2019, and seek a
3 10-2 verdict. And so that could go on for
4 years, and that ought to be taken into account.
5 Secondly, I think incorporation is
6 just different. I think that's the lesson of
7 the sweep of this Court's cases, is reliance
8 interests are less important when it comes to
9 incorporation because the Bill of Rights
10 themselves are so important. When the Court
11 says something is a fundamental rule under our
12 way of doing criminal justice, the states have
13 to follow that rule the same way as the federal
14 government.
15 And then the last thing I think that
16 makes this case different than an ordinary stare
17 decisis case is the vote in Apodaca. It's not
18 just that it was a 4-1-4 vote, but it's just
19 that -- it's that the other eight justices
20 rejected the decisive reasoning in that case.
21 And I think that makes this almost a universe of
22 one.
23 And if I could push it even further, I
24 would say that if you have any doubts, look at
25 Justice Powell's reasoning. Justice Powell's
reasoning in Apodaca itself was based on a
2 refusal to follow precedent. What he said was
3 I'm agreeing with the past dissenters. I know
4 you have this rule from Malloy against Hogan
5 from five years ago that requires the same
6 standards to apply in a federal court as they
7 apply -- in state court as they apply in federal
8 court, but I don't want to follow that rule.
9 He didn't even try to distinguish the
10 Court's old holding. So in a sense Apodaca
11 itself was born of a disregard for stare
12 decisis. And so if you feel strongly about
13 stare decisis as a value, this case is almost
14 singular in its -- in its -- in the compelling
15 reasons right now to -- to overrule Apodaca.
16 JUSTICE ALITO: Since you mentioned
17 Balzac, can I ask you a question about that? So
18 let's imagine this case is decided in your
19 favor, and then a -- a defendant who has been
20 convicted by a non-unanimous verdict in Puerto
21 Rico comes here and he says, look, I am a
22 citizen of the United States, and the only
23 reason why I was able to be convicted by a
24 non-unanimous verdict is -- are these old
25 Insular Cases that reflect attitudes of the day
1 in the -- in the end of the -- after the -- the
2 aftermath of the Spanish American War, and just
3 as you brushed aside Apodaca, you should brush
4 aside the Insular Cases.
5 MR. FISHER: I think I would -- I
6 would say that would be different for all the
7 reasons I just outlined. The Insular Cases were
8 majority decisions from the Court. They were --
9 they were based on a view that has not been
10 disregarded or left behind in the Court's
11 jurisprudence.
12 There may be arguments parties can
13 make under ordinary stare decisis principles,
14 but the last point I would leave you with is
15 this is not an ordinary stare decisis case.
16
17
18
19
20
21
22
23
24 25
CHIEF JUSTICE ROBERTS: Thank you,
counsel.
The case is submitted.
(Whereupon, at 2:01 p.m., the case was
submitted.)
U.S.A. Supreme Court Decision on Unanimous Vote requirement for a Jury 18-5924_6j37.pdfRamos verus Lousiana court decision.pdf