U.S.A. Supreme Court Decision: Ramos Versus Louisiana
Unanimous Jury Verdict Requirement Case.
Is it professional negligence if a person faces a life sentence or any other issue with a jury, if the lawyer / solicitor or prosecutor does not use or is not aware of the Vote Accuracy equation that determines the error in a 12 to 0 or 10 to 2 jury vote, etc.? The "Vote Accuracy equation" is located at : https://www.decisionaccuracy.com/vote-result-calculator.
The Court Jury Verdict Calculator is at : https://www.decisionaccuracy.com/court-jury-verdict-accuracy-calculator. Is there a professional responsibility to let other lawyers know of this, when it can free your client or proper judge a case?
How can Stanford University Law school, Berkeley Law school. Harvard Law School, Yale law school, Oxford law school, Cambridge law school and the others not know of this? How can a law student not be educated in this mathematics?
Read the RAMOS VS LOUISIANA U.S.A. Supreme Court to see a Supreme Court struggling with an issue seemingly unaware there is mathematics and a mathematics formula 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.
Same for a congress or parliament that creates laws that does not measure accuracy and error of a vote, where that law is later used in a court. Should that law not meet the requirements or essence of this Supreme Court decision? How about a presidential election? Or election of a congressman? Are they not important decisions that effect 400 million Ramos at the same time?
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.
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
United Kingdom U.K. jury system:
"On a panel of 12 or 11 jurors, 10 must agree. On a panel of 10 jurors, 9 must agree. If for any reason there are 9 jurors or fewer, the verdict must always be unanimous." (https://www.law.ac.uk/resources/blog/everything-you-need-to-know-about-jury-service/#:~:text=On%20a%20panel%20of%2012%20or%2011%20jurors%2C,they%20must%20start%20over%20with%20a%20new%20jury. May 13, 2024 4:39AM UTC)
What this tells us is that the U.K. and the U.S.A. system that relies on it, know little about voting mathematics. They have mathematics to design a Hubble Telescope and to design rockets and spaceships, but no mathematics for voting.
For law and Decision Making:
A jury system is superior to a single judge or person
Based on statistics principles that the greater the random sample size is, the more confidence and accuracy there is in the final computations, we can conclude that a jury is better or far better than a single individual for a judgement.
The jury may be composed of individuals, or experts in their field, such as judges, or any other specialty, as determined optimum by mathematical statistical principals.
Therefore: 1. As n, the sample size increase, so does Confidence Level, which is a necessary but insufficient condition. 2. As vote success proportion increases, so does accuracy accordingly to the Vote Accuracy Equation. 3. As number of answer-choices increase in a vote, so does accuracy accordingly to the Vote Accuracy Equation. With these three conditions, along with proper statistical sampling, we will have necessary and sufficient conditions for accurate judgement, cost aside.
Conclusion: A Jury system is better or far better than an individual judge or person if we desire best judgement (best accuracy). But the jury should have sufficient number of voters and sufficient success percent ("yes" voters proportion) according to the Vote Accuracy formula.
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.
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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