In almost every part of the United States, a single juror on a jury of twelve can protect a defendant from a criminal conviction. However, there are two states in the Union that only require ten out of twelve jurors to render a conviction: Louisiana and Oregon. Evangelisto Ramos was charged with second-degree murder in the State of Louisiana and asserted his right to a jury trial. At the end, ten out of twelve jurors found him guilty beyond a reasonable doubt and he was sentenced to life in prison without the possibility of parole. Two of the jurors would have voted to acquit. In any other part of the country, this would have secured for Mr. Ramos, at the minimum, a hung jury and a mistrial. Mr. Ramos challenged his conviction through the state and federal courts citing that his finding of guilt by a non-unanimous jury was a result of Louisiana’s history of racism. The U.S. Supreme Court took the case to decide whether the Sixth Amendment right to a jury trial – as incorporated against the States by way of the Fourteenth Amendment – requires a unanimous verdict to convict a defendant of a serious offense?
There is no question that the Sixth Amendment to the U.S. Constitution requiring an impartial jury has long required an unanimous jury in both the English system and the U.S. federal system for hundreds of years. This constitutional guaranteed applied to the U.S. government, but it was not yet forced against the states at the birth of the country. The Fourteenth Amendment came much later in 1868 following the Civil War and required that all Americans were entitled to equal protection under the laws. The U.S. Supreme Court subsequently incorporated the Sixth Amendment right to a jury trial against the states. Duncan v. Louisiana, 391 U.S. 145, 148-150 (1968). The U.S. Supreme Court also further explained that the Sixth Amendment bears the same content when asserted against the states as it does the federal government. Malloy v. Hogan, 378 U.S. 1, 10-11 (1964). This includes the requirement to have an unanimous jury to support a conviction. But why is this requirement only being struck down in Louisiana and Oregon in the year 2020?
It turns out that U.S. Supreme Court previously approached the matter of unanimous juries in Apodaca v. Oregon, 406 U.S. 404 and Johnson v. Louisiana, 406 U.S. 356 in 1972. In Apodaca, four justices took the position that the Sixth Amendment required unanimous juries and the state laws should be struck down, while four other justics took the position that the costs of unanimity against the state systems outweighed the benefits. Justice Powell, the tiebreaker vote, found that the Sixth Amendment does require jury unanimity, but that the convictions and the state system should be upheld on the basis of stare decisis and it was simply too late to fully apply the Fourteenth Amendment fully. This become the law of the land, despite this position on precedent being consistently challenged by future court decisions.
Now the issue of non-unanimous juries is back. There is no question that Louisiana’s 10-2 jury rule was based on an old Jim Crow law that attempted to dilute the influence of African-American jurors during deliberation. Louisiana itself passed a constitutional amendment in January 2019 requiring that jury verdicts in criminal cases be unanimous, but still upheld convictions based on non-unanimous verdicts prior to January 2019. So Mr. Ramos’ conviction still stood under state law and the U.S. Supreme Court must make the decision regarding his fate and those of countless non-unanimous convictions from Louisiana and Oregon.
The decision in Ramos v. Louisiana, 590 U.S. __ (2020) was handed down on April 20, 2020. In what appears to the layperson to be a fairly easy issue to decide, the justices divided on many aspects of the decision:
- Five justices (Gorsuch, Ginsburg, Breyer, Sotomayor, Kavanaugh) held that a felony conviction requires a unanimous jury verdict in state courts through the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Oregon’s 10-2 jury scheme is eliminated and the convictions of thousands of individuals in both states may be subject to being overturned. For certain, Mr. Ramos’ conviction was reversed and the cases Apodaca v. Oregon and Johnson v. Louisiana are overruled.
- Three justices (Gorsuch, Ginsburg, Breyer) found that Apodaca v. Oregon was never really binding precedent on the Court because Justice Powell’s opinion (while it was a tiebreaker) had no precedential value because it was not the plurality opinion so the principals of stare decisis were not violated.
- Two justices (Sotomayor, Kavanaugh) found that Apodaca v. Oregon was binding precedent on the court, but there were compelling reasons to overrule it at this time.
- Justice Thomas concurred with the result in the case but reached the decision by very different reasoning. He agrees that the Sixth Amendment requires unanimous juries, but that the Privileges or Immunities Clause of the Fourteenth Amendment is what constrains the states from violating this, not the Due Process Clause. He feels that the Privileges or Immunities Clauses applies because it protects “constitutionally enumerated rights” against abridgment by the States”. As such, he believes that Apodaca v. Oregon is not binding on the Court’s decision because it addresses the Due Process Clause when this issue should be resolved under the Privileges or Immunities Clause.
- Three justices (Alito, Roberts, Kagan) dissented, finding that Apodaca v. Oregon is longstanding binding precedent that the majority is casting aside without considering the effect on stare decisis or the collateral effect on thousands of convictions. They scoff at the suggestion by some of the majority that Apodaca was not real precedent and it was merely a cop-out to avoid stare decisis Even if this wasn’t the case, it is insufficient to overrule binding precedent on the weight of a “poor quality” plurality opinion and Justice Powell’s separate opinion. This decision, they say, casts a huge burden on Louisiana and Oregon which must deal with several vacated convictions despite the law being good at that time. The dissent even suggests that “if a unanimous vote had been needed, the jury would have continued to deliberate and the one or two holdouts might well have ultimately voted to convict.” However, the principles of stare decisis control here and Apodaca should not have been overruled.
Despite the decision over fundamental rights, the issue of non-unanimous juries seemed to be a sideshow to the principles of stare decisis. This may be an indicator on where the court might go in the future towards dealing with other issues such as Roe v. Wade. No doubt the most shocking aspect of the case to most observers is that Justice Kagan joined the dissent when she is usually a justice willing to attack questionable laws that arose due to racial motivation. The U.S. Supreme Court also did not make it clear whether the decision would be retroactive to anyone in the country who had been convicted of a felony by a non-unanimous jury. Clearly, Mr. Ramos and anyone else on “direct appeal” with the issue will see the benefits of the decision, but anyone else convicted long ago who already exhausted their appeals may have to fight for those rights another day.
Michigan law provides criminal defendants the right to a unanimous jury verdict. MCR 6.410(B). This right is also protected for juveniles facing adjudication in delinquency proceedings. MCR 3.911(C)(1)(b). Civil trials do not necessarily require an unanimous verdict (e.g. in a 6-person civil jury panel, only 5 need to agree). However, in “civil cases involving the possible commitment to a mental, correctional or training institution, the court shall receive only a unanimous verdict.” MCL 600.1352.
If you or a loved one have questions about jury trials or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
