by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that in jury trials of criminal cases the verdict must be unanimous to convict the defendant, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).

Evangelisto Ramos was convicted of a serious crime in Louisiana by a jury vote of 10 to 2. He was sentenced to a term of life imprisonment without the possibility of parole. Ramos challenged his conviction on the ground that a conviction by a non-unanimous jury violates his Sixth Amendment right to a jury trial.

Justice Gorsuch, writing for the Court, observed that “[i]n 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But not in Louisiana. Along with Oregon, Louisiana has long punished people based on 10-to-2 verdicts like the one here.” But at one time, all States required unanimous verdicts.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....” The right to a jury trial in criminal cases is also enshrined in Article III, section 2, of the U.S. Constitution. But that venerated document does not define what is meant by “jury trial.” Did those words convey, at the time James Madison penned the Sixth Amendment, that a jury must reach a unanimous verdict in order to convict?

The requirement of juror unanimity emerged in England in the 1300s and was soon accepted as a vital right protected by the common law. J. Thayer, Evidence at Common Law 86-90 (1898) (“Thayer”). No one could be found guilty of a serious crime unless “the truth of every accusation ... should ... be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion.” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769). A “verdict, taken from eleven, was no verdict” at all. Thayer.

The Constitutions of Delaware, Maryland, North Carolina, Pennsylvania, Vermont, and Virginia explicitly required unanimous jury verdicts to convict. All States, even without an explicit provision in their respective Constitutions, required unanimity as an essential feature of a jury trial. Commonwealth v. Fells, 36 Va. 613 (1838). By the time the Sixth Amendment was written and ratified by the States in 1791, unanimous verdicts had been required for about 400 years.

And the right to unanimous verdicts continued in State courts in the years after ratification. In 1824, Nathan Dane reported as fact, in 6 N. Dane, Digest of American Law, ch. LXXXII, Art. 2, § 1, p. 226, that the U.S. Constitution required unanimity in criminal jury trials for serious offenses. And Justice Story explained that “unanimity in the verdict of the jury is indispensable.” 2 J. Story, Commentaries on the Constitution of the United States § 777, p. 248 (1833).

SCOTUS had also repeatedly affirmed that the Sixth Amendment requires unanimity. A defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of twelve persons.” Thompson v. Utah, 170 U.S. 343 (1898). “Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.” Andres v. United States, 333 U.S. 740 (1948). In the 120-plus years since the Thompson decision, SCOTUS “has commented on the Sixth Amendment’s unanimity requirement no fewer than 13 times....” (See opinion for citations of those 13 cases.)

SCOTUS has explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 (1968). And the provisions of the Bill of Rights that have been incorporated under the Fourteenth Amendment apply with the same force and effect to the courts of the States as to the federal courts. Malloy v. Hogan, 378 U.S. 1 (1964). In light of this weight of history and precedent, how did Ramos come to be convicted by a Louisiana jury’s 10-to-2 verdict?

Racists, racial supremacists, racism, and racial supremacy - the people and the ideology espoused by them - continue to impact the U.S. justice system. Often it is done in ignorance and done implicitly. But in Louisiana, non-unanimous verdicts for serious crimes were first explicitly endorsed for racist reasons at a constitutional convention in 1898. One committee chairman said the avowed purpose of the convention was to “establish the supremacy of the white race.” Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 374 (H. Hearsey ed. 1898). The men at that convention produced a document that included many of the insidious Jim Crow laws: the poll tax, the combined literacy and property ownership test, and clauses that exempted White residents from these laws.

At the time, the U.S. Senate was investigating Louisiana for systematically excluding Blacks from juries. In order to deprive Blacks of their rights without overtly passing a policy of blatant racial animus, the men attending the convention stripped Blacks of their power in another way. Keenly aware of the racial demographics, they sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.” State v. Maxie, No. 13-CR-72522 (La. 11th Jud. Dist. 2018).

Similarly, in the 1930s, Oregon’s rule permitting non-unanimous verdicts was the result of the rise of the Ku Klux Klan with the goal of diluting “the influence of racial, ethnic, and religious minorities on Oregon juries.” State v. Williams, No. 15-CR-58698 (C.C. Ore. 2016).

In a “strange” pivot from the Court’s jurisprudence, SCOTUS upheld the constitutional validity of this practice of criminal conviction by a non-unanimous jury in Apodaca and in the companion case Johnson v. Louisiana, 406 U.S. 356 (1972). The decision in Apodaca was 4-1-4. The plurality upheld the practice of conviction by non-unanimous verdict on the flimsiest and poorest of rationales. The plurality concluded that in today’s modern times, the costs of requiring unanimous verdicts were not outweighed by any perceived benefits. That is, their view was that the purpose of jury verdicts was only to safeguard against an overzealous prosecutor, so requiring at least 10 jurors to convict is sufficient. Requiring unanimous verdicts didn’t add any benefit but did add cost whenever hung juries resulted in new trials. The four dissenting Justices found the practice unconstitutional based on the weight of history and precedent.

Justice Powell broke the tie with his concurring opinion. He opined that the dissenting Justices were correct — the Sixth Amendment requires unanimous verdicts, but he further opined that the Sixth Amendment does not apply to the States to the same extent as it applies to federal courts. This was known as the “dual track” approach of applying the provisions of the federal Constitution to the States — an approach that had been rejected by SCOTUS nearly 10 years earlier. Malloy.

SCOTUS explicitly held in the instant case that the Sixth Amendment right to a jury trial includes the right to a unanimous verdict and is applicable to the States via the Fourteenth Amendment, overruling Apodaca.

Accordingly, the Court reversed Ramos’ conviction. See: Ramos v. Louisiana, 206 L. Ed. 2d 583 (2020).

Writer’sNote: This decision is applicable to those who were convicted by non-unanimous verdicts and have appeals pending. It is currently an open question if those whose cases have become final after appeal can benefit from this decision via collateral attack, i.e., habeas corpus. However, we will soon have an answer. SCOTUS granted certiorari in Edwards v. Vannoy on May 4, 2020, to answer the following question: “Whether this Court’s decision in Ramos v. Louisiana, 590 U.S. ___ (2020), applies retroactively to cases on federal collateral review.”

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