This fall, the U.S. Supreme Court heard oral arguments in a criminal case with potentially broad implications for overturning criminal convictions handed down by non-unanimous juries. A decision is not expected until next summer. In addition, certiorari petitions remain pending in two capital cases with potentially broad implications on jury sentencing and on the analysis of ineffective assistance claims in the context of a defendant’s trial shackling. The Government’s request to reverse the sentencing relief granted in a highly publicized federal death penalty case is also pending.
Fall 2020 Oral Arguments
Edwards v. Vannoy, No. 19-5807
In May 2020, the Supreme Court granted certiorari in Edwards v. Vannoy, to decide whether Ramos v. Louisiana, in which the Court mandated juror unanimity in state criminal trials, applies retroactively to cases on federal collateral review. On November 30, the Court heard oral arguments, with both sides addressing how Teague v. Lane (1989), the precedential case for deciding retroactivity, should affect Ramos. The Supreme Court in Teague held that, unless an exception applies, new constitutional rules of criminal procedure will not be retroactively applied to cases that were finalized—that is, cases currently in the collateral review stage—before the new rules are announced. Teague recognized two narrow exceptions. First, a new rule should be applied retroactively if it is substantive, further defined as a rule placing certain conduct or people beyond the power of the State to punish. Second, a new rule should be applied retroactively if it is a “watershed rule,” such that it implicates fundamental fairness and accuracy of the criminal proceeding.
Thedrick Edwards is a Black man serving a life sentence after being convicted by an 11-1 jury (with the vote to acquit coming from the jury’s sole Black member). André Bélanger, representing Mr. Edwards, argued to the Court that there are two ways to find Ramos applies retroactively to Mr. Edwards’ conviction. First, he argued that Apodaca v. Oregon, which held that the Sixth Amendment right to a unanimous jury did not apply to the states, was “an anomaly that did not alter prevailing constitutional standards”; therefore, the juror unanimity rule in Ramos was not a new rule under Teague analysis, and did not need to meet either of the two exceptions to have retroactive application. While Justice Gorsuch, who authored the majority opinion in Ramos, agreed that, in his view, Ramos was not a new rule, he also pointed out that Ramos was decided by a plurality and some of the justices that joined the decision thought Apodaca was a precedent of the Court. Justice Kagan expressed that it would be a “steep climb to convince [her]” that Apodaca was not a precedent.
Alternatively, Mr. Bélanger argued that, if the Court were to find that Ramos announced a new rule, it is a “watershed rule” under Teague similar to Gideon v. Wainwright, which was decided before Teague but is considered a clear example of this kind of rule. Mr. Bélanger analogized Ramos to Gideon, asserting that both cases restored the Court’s understanding of fundamental bedrock principles. A majority of the oral argument as well as the justices’ questions were dedicated to exploring the watershed rule exception under Teague. Justices Gorsuch and Sotomayor raised concerns about whether the Court has carved out an exception that is never going to be used, and the U.S. Government, which also received time to argue as an amicus party, asserted that the Court’s failure to apply the watershed exception in the past three decades suggests that any such rules had already been recognized pre-Teague.
In addition to questions getting at the historical application of the watershed exception, the justices explored how the constitutional underpinnings of Ramos affected the analysis. Justice Kagan and Sotomayor questioned how the unanimity requirement would not be considered an inherent characteristic of the criminal system.
The impact of applying Ramos retroactively was also the subject of discussion. Justices Thomas, Kagan, and Barrett asked about how the Ramos decision improves accuracy of the system and how accuracy plays into the Teague analysis. Mr. Bélanger offered empirical evidence that retroactive application is “necessary to avoid an impermissibly large risk of an inaccurate conviction,” noting that a quarter of ultimately exonerated Louisiana defendants were convicted by a non-unanimous jury. Justice Gorsuch also questioned the burden that retroactive application would have on the state, with Mr. Bélanger responding that Teague does not factor in the state’s reliance interests, but even if it did, the impact would be minimal based on estimates of how potentially-eligible cases could be divided among Louisiana line prosecutors. The State and the federal government disagreed with both contentions.
The Court’s decision is expected this summer.
Pending Certiorari Petitions
United States v. Tsarnaev, No. 20-443
The U.S. Court of Appeals for the First Circuit in July 2020 vacated Dzhokhar Tsarnaev’s death sentence and ordered resentencing by the U.S. District Court for the District of Massachusetts. In response, the Government petitioned the Supreme Court seeking to have the First Circuit’s decision reversed. The petition for certiorari was filed on October 6, 2020. In its petition, the Government argued that the First Circuit erroneously established an inflexible rule for voir dire that does not give adequate deference to district court decisions. The Government further argued that the First Circuit did not give enough discretion to the district court’s decision to exclude evidence about Mr. Tsarnaev’s older brother’s involvement in a 2011 triple homicide. An amicus brief filed by the Fraternal Order of Police asserted that the First Circuit’s decision “will impede the government’s efforts to secure justice for law enforcement officers injured or killed in the line of duty.” Mr. Tsarnaev’s response was filed December 17, 2020.
Poole v. Florida, No. 20-250
The U.S. Supreme Court’s 2016 Hurst v. Florida decision, the Florida Supreme Court ruled the same year in Hurst v. State that a jury, not a judge, must be the finders of fact in determining aggravating factors, in weighing aggravating versus mitigating factors, and in the ultimate sentencing decision, and that the jury must make these findings unanimously. The court further instructed that its decision would apply retroactively to trials since 2002. However, in 2020, the Florida high court reversed its earlier decision. In State v. Poole, the court found that its prior decision had mistakenly conflated the jury’s “eligibility” decision (the finding that a defendant is guilty of a crime and at least one aggravator sufficient to impose death) with its “selection” decision (the finding that the defendant should be sentenced to death), when the U.S. Supreme Court in Hurst had actually only required a jury, rather than a judge, to be the fact finder in the former category of decisions.
Mr. Poole’s certiorari petition, filed by a defense team including pro bono co-counsel from Akin Gump, asked the Court to reverse the Florida Supreme Court’s new interpretation and confirm that Hurst v. Florida indeed requires a jury, not judge, to conduct the weighing of aggravating against mitigating factors. The petition argues that Florida’s contrary application violates the Sixth and Eighth Amendments.
[Note: Between the writing and publication of this article, the Supreme Court ruled on Mr. Poole’s petition, denying certiorari on January 11, 2021.]
Whatley v. Warden, No. 20-363
Whatley v. Warden asks the Court to apply to the effective assistance of counsel context long-standing precedent holding shackling of a defendant during a trial inherently prejudicial. In Frederick Whatley’s case, trial counsel did not object to the shackling of his Black client, which continued during his testimony to the jury, including when, on cross-examination, the State made Mr. Whatley re-enact the crime while holding a toy gun, all while shackled. Because defense counsel failed to object—even after the prosecutor flagged that the shackling might be an issue—the Georgia courts on direct appeal found that the error had been “invited.” In post-conviction proceedings, the state courts then found that Mr. Whatley could not make the necessary showing that the shackling was prejudicial under the Strickland v. Washington ineffective assistance framework, which was needed because the inherent-prejudice standard applied only to structural-error review on direct appeal. The federal courts upheld this ruling as reasonable during federal habeas proceedings, with the Eleventh Circuit Court of Appeals terming the shackling “trivial.”
Mr. Whatley’s certiorari petition asks the Supreme Court to resolve a split among the federal circuit courts over how to resolve shackling claims within the Strickland framework. Some circuits have held that the Court’s shackling precedent must factor into the Strickland prejudice-prong assessment, overturning state court post-conviction relief denials that fail to do so. In others, including the Eleventh Circuit, a state court does not act unreasonably when adjudicating an ineffective assistance claim premised on trial counsel’s failure to object to shackling by refusing to find the shackling inherently prejudicial.
The National Association for Public Defense, represented by Baker Donelson, filed an amicus brief on behalf of Mr. Whatley arguing that the inherent-prejudice standard in structural-error cases should apply here, to Mr. Whatley’s ineffective assistance claim, as a shackling error makes a trial fundamentally unfair. Attorneys from Orrick serve as Mr. Whatley’s pro bono co-counsel.