Argument evaluation: Complicated retroactivity points divide justices in jury-unanimity case

Argument analysis: Complex retroactivity issues divide justices in jury-unanimity case

The Supreme Court heard orally on Wednesday Thedrick Edwards, a Louisiana man who was sentenced to life imprisonment in 2006 for his role in a number of crimes. The jury that sentenced the Black Edwards disagreed. The lone black juror voted to acquit him. In April 2020, the Ramos v Louisiana Supreme Court ruled that the sixth amendment created a right to a unanimous jury that would apply in both federal and state courts. The Ramos court was divided on both the outcome and the rationale for its decision, and the judges were found to be similarly divided on Wednesday on the issue before them: whether their Ramos ruling is already applicable retrospectively to cases like Edwards’ final will.

Attorney André Bélanger argued for Edwards, explaining to the judges that there are two ways to claim that Ramos applies retrospectively. The first, he explained, is based on the idea that the 1972 Supreme Court decision in the Apodaca v Oregon case that states do not have the right to a unanimous jury does not prevail. Therefore, the Ramos decision is not a “new rule” for the purposes of the 1989 Supreme Court decision in Teague v. Lane, which will set the framework to determine when new criminal procedure rules will be applied retrospectively to federal cases, review of the collateral. The second option, Bélanger went on, is that Apodaca was simply so wrong that it had to be overridden, so Ramos established the kind of “watershed” rule that retroactively applies under Teague. “Both ways,” concluded Bélanger, “fix something that we all know is wrong.”

Only Judge Neil Gorsuch, draftsman of the Ramos court opinion, seemed to particularly approve of the idea that Ramos had not created a new rule. He stressed that the Supreme Court had long debated the jury’s unanimity requirement. And when Bélanger claimed that the sixth amendment always required unanimity, Gorsuch agreed: “I hope you are right”.

Much of Wednesday’s nearly 90 minutes of hearing was instead spent discussing whether Ramos created a “watershed” rule that would apply retrospectively, and what effect that could have if a jury unanimity requirement was applied retrospectively would.

Chief Justice John Roberts and Justice Elena Kagan urged Bélanger to provide empirical evidence to support his argument that the jury unanimity requirement was a “turning point” rule in preventing “an unduly high risk of inaccurate convictions”. Kagan suggested that such evidence was “surprisingly sparse” and that the unanimity rule could allow more guilty to be set free rather than deter innocent people from convicting.

Other judges focused on the fact that since its ruling in Teague, the Supreme Court has not ruled that a rule of procedure should apply retrospectively, even in cases that included important rights such as the right to trial. Judge Brett Kavanaugh pointed out that there have been a long line of cases after Teague where the court has refused to apply a new rule retrospectively. And before Teague in the DeStefano v. Finding that the right to trial does not apply to cases that have already become final, Woods compared the dissenting judges’ right to trial to the right to be represented by a lawyer – the same right that the Teague court considered listed the type of rule that would apply retrospectively. There appears to be an “asymmetry” in applying the right to a unanimous jury retrospectively but the right to a trial not, Kavanaugh noted.

Judge Samuel Alito described the investigation into whether the unanimity requirement is a “watershed” rule as “rather strange” and compared it to looking for an animal – such as a Tasmanian tiger – that is believed to be extinct.

While some of her colleagues seemed to believe that the lack of any rules on watersheds since Teague weighed in on finding Ramos created one, Justice Sonia Sotomayor appeared to hold the opposite view. She asked Elizabeth Murrill, the Louisiana attorney general, what a turning point rule would be if the jury requirement was not unanimous. Is the Supreme Court an exception, Sotomayor asked, that we will never use?

Gorsuch later reiterated Sotomayor’s argument in a question to Christopher Michel, assistant to the US attorney general who argued on behalf of the federal government as a “friend of the court” in support of Louisiana. Your argument, Gorsuch told Michel, is that the retroactive exemption for watershed rules might at some point have served a purpose, but it no longer does. But it’s hard to see, Gorsuch suggested, what might qualify under the exception if the jury’s unanimity requirement doesn’t.

The judges also tried to determine the real impact a decision in favor of Edwards could have on the criminal justice system in Louisiana, Oregon and Puerto Rico, which also allows for inconsistent judgments. Bélanger tried to assure them that the impact would be minimal. At most, around 1,000 inmates in Louisiana could prove that they had been convicted by a non-unanimous jury. And from there, he insisted, other groups of inmates – like those who might soon be paroled – would not get a new trial. In the end, said Bélanger, the need for retrial would be limited to two or three additional cases per prosecutor.

Murrill pushed back against the idea that the new appeals and lawsuits “could be distributed to anyone who happens to be an assistant district attorney.” Michel added that there would be a “ripple effect” on federal inmates for those whose sentences in federal courts were based in part on state convictions that could be overturned. Those numbers, Michel told the judges, could amount to “a few hundred”.

Two of the most conservative judges expressed skepticism that the court should consider whether the jury unanimity requirement applies retrospectively at all. Both Alito and Justice Clarence Thomas seemed to have doubts that the court even had power to apply rules retrospectively. Alito also suggested that before deciding whether it is a watershed, judges should first decide whether the federal habeas corpus law would prohibit the application of Ramos to Edwards’ case.

By the time the hearing ended, both Gorsuch and Sotomayor, who had a majority in Ramos, appeared to be right on Edwards’ side, but it was not clear whether Edwards would be able to get the additional three votes he received would have to prevail. A decision in this case is expected by summer.

This post was originally published on Howe on the Court.

Posted in Edwards v. Vannoy, Featured, Merits Cases

Recommended citation:
Amy Howe, argument analysis: The judges share complex problems with retroactive effects in the case of the jury’s unanimity.
SCOTUSblog (December 2, 2020, 5:50 p.m.),


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