Does the Sixth Amendment Require Unanimous Jury Verdicts in Both State and Federal Courts?
Does the Sixth Amendment Require Unanimous Jury Verdicts in Both State and Federal Courts?
Petitioner Evangelisto Ramos was convicted in a Louisiana state court of murder. At the time, Louisiana accepted non-unanimous jury verdicts in criminal cases, and Ramos’s jury convicted him on a 10–2 vote. The Supreme Court has previously held that the Sixth Amendment to the Constitution requires unanimous verdicts in federal court, but that the Sixth Amendment does not require unanimity in state courts. Citing that decision, the Louisiana Court of Appeal affirmed Ramos’s conviction. Ramos has appealed to the Supreme Court, seeking to reverse the Court’s precedent approving non-unanimous jury verdicts in state courts.
Docket No. 18-5924
Argument Date: October 7, 2019
From: The Court of Appeal of Louisiana, Fourth Circuit
by Brooks Holland
Gonzaga University School of Law, Spokane, WA
Does the Sixth Amendment to the Constitution require unanimous jury verdicts in criminal cases in both federal and state courts?
Evangelisto Ramos was convicted of murder by a Louisiana jury. Ramos had been charged with murder after a deceased woman was discovered stuffed into a trash can belonging to a church across the street from Ramos’s house. The case against Ramos was largely circumstantial: Ramos admitted a sexual relationship with the victim, Ramos’s DNA was recovered from both the victim and the handles of the trash can where she was found, and the victim’s nephew placed Ramos at the victim’s house on the day she disappeared. Ramos, in turn, claimed that while he did have a sexual relationship with the victim, she departed with “two black men” on the day she disappeared, and she may have been a prostitute.
After a two-day trial, the court accepted a 10–2 verdict from the jury convicting Ramos of murder. Louisiana law at the time permitted a 10–2 jury verdict in non-capital cases. Ramos appealed to the Louisiana Court of Appeal, arguing that Louisiana’s law permitting non-unanimous jury verdicts in non-capital cases violated his equal protection rights. See State v. Ramos, 231 So.3d 44 (La. Ct. App. 2017). The court rejected this argument. In denying Ramos a new trial, the court cited to the Supreme Court’s decision in Apodaca v. Oregon, 406 U.S. 404 (1972), which held that, in state court trials, “we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one.”
The Louisiana Supreme Court denied Ramos’s petition for review. On March 18, 2019, the Supreme Court granted Ramos’s petition for a writ of certiorari to the Louisiana Court of Appeal. See Ramos v. Louisiana, 139 S. Ct. 1318 (2019).
The Ramos case presents an opportunity for the Supreme Court to revisit a uniquely asymmetrical rule in the Court’s “incorporation” jurisprudence. “Incorporation” refers to the constitutional doctrine under which the Court has progressively applied the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment. Generally, however the Court defines the federal constitutional rule in the Bill of Rights, the Court incorporates that rule in the same form against the states as a uniform rule of constitutional law.
The Supreme Court broke this mold in one decision, however, regarding the Sixth Amendment right to a jury trial. In Apodaca, the Court held 5–4 that, as a matter of federal constitutional law, the Sixth Amendment requires unanimous jury verdicts. But one of the justices in that majority, Justice Lewis Powell, joined the other four justices on the question of whether due process under the Fourteenth Amendment requires unanimous jury verdicts in state courts. These five justices concluded that due process does not, thus producing an asymmetry in jury trial rights: unanimity is required in federal criminal cases, but state courts may accept jury verdicts from a “substantial majority” of the jurors.
The Supreme Court itself has spotlighted this asymmetry as a constitutional anomaly. For example, in McDonald v. City of Chicago, 560 U.S. 742 (2010), a Second Amendment case, the Court observed that “Apodaca…does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” Even more recently, in Timbs v. Indiana, 139 S. Ct. 682 (2019), an Eighth Amendment case, the Court identified Apodaca as the “sole exception” to the rule that “if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.”
Making Apodaca even more anomalous, only two states have employed this option of non-unanimous jury verdicts: Oregon and Louisiana. Moreover, Louisiana has changed its law and will require unanimous jury verdicts for crimes committed on or after January 1, 2019. This law is not retroactive, however, and the crime in Ramos’s case occurred in 2014. Accordingly, Ramos’s conviction permits the Supreme Court to reconsider whether a non-unanimous verdict satisfies the Sixth Amendment as applied to the states through the Due Process Clause.
Ramos and Louisiana agree that this question has “two sub-issues: (1) whether the Sixth Amendment’s Jury Trial Clause requires unanimity; and (2) if so, whether the requirement applies to the states by means of the Fourteenth Amendment.” Therefore, in exploring whether the states must require unanimous verdicts, this case first revisits the underlying premise of Apodaca: that the Sixth Amendment requires unanimous verdicts in the first place.
Ramos asserts that the Supreme Court’s precedent establishes that the Sixth Amendment demands unanimous jury verdicts. Apodaca itself held that the Sixth Amendment mandates unanimous verdicts. Moreover, in “decisions dating back to the nineteenth century,” and extending to contemporary case law, the Supreme Court has repeatedly referred to the Sixth Amendment as expecting unanimity. To Ramos, this precedent cements jury unanimity as the federal rule under the Sixth Amendment.
Even if this precedent does not settle the question, Ramos argues, the history and purpose of the Sixth Amendment do. Ramos connects centuries of English common law jurisprudence to practices in the United States at the country’s founding to argue that the “Jury Trial Clause guarantees the integral components of the common law right.” The requirement of a unanimous verdict, Ramos maintains, “was one of the ‘essential features of trial by jury at the common law.’” The near uniform practice of this country subsequent to the founding further demonstrates that “[n]onunanimity in state trials for nonpetty offenses is an aberration.”
Unanimity also advances the established purposes of the jury trial right, such as checking prosecutorial excess, promoting group deliberation and accuracy, ensuring representative community judgments, and maintaining public confidence in criminal verdicts. Several amicus briefs support and develop these points, including briefs from the American Bar Association, the ACLU, the National Association of Criminal Defense Lawyers, several states, law professors and social scientists, retired judges, and the current governor and former governors of Oregon. Ramos contends that Louisiana itself implicitly acknowledged the importance of unanimity to these values by requiring unanimity in all capital cases.
Louisiana devotes a majority of its brief to challenging this premise that the Sixth Amendment requires unanimous verdicts. Examining the jury trial right enshrined in both the Sixth Amendment and Article III, Louisiana notes that the text of the Constitution does not expressly mandate unanimity. Louisiana further claims that Ramos overlooks the important relationship between Article III and the Sixth Amendment on the question of whether the Sixth Amendment implicitly requires unanimity. In Louisiana’s view, the Sixth Amendment’s primary purpose was to ensure that trials are held “within the district of the crime,” a vicinage requirement that was missing in Article III. An explicit unanimity requirement in James Madison’s early draft of the Sixth Amendment, Louisiana emphasizes, failed to appear in the Bill of Rights.
Nor does the Sixth Amendment’s common law lineage mandate unanimous verdicts. As Louisiana observes, the Supreme Court has dispensed with other common law features to a jury trial, such as the requirement that juries be comprised of twelve persons. Louisiana also dissects Ramos’s historical research from the founding and post-founding eras, and concludes that “Ramos’s historical evidence in support of the notion that the Sixth Amendment incorporates all features of the common-law jury wholesale is certainly no ‘better than middling.’” Thus, “the Apodaca plurality correctly applied settled law in concluding that the Sixth Amendment does not mandate unanimity.”
Louisiana further contends that a unanimous verdict is not more essential to “‘the great purposes which gave rise to the jury in the first place’” than features that the Supreme Court also has jettisoned for the Sixth Amendment, such as a 12-person jury requirement. Louisiana thus maintains that “regardless of whether the final vote is 12–0, 11–1, or 10–2,” the jury still serves as a meaningful community safeguard against governmental abuse and can deliberate effectively. Indeed, Louisiana claims that in some cases, “a unanimity requirement will degrade the quality of jury deliberations and instead will promote delay, frustration, and gridlock.” A non-unanimous verdict rule thus prevents the “eccentric” or “irrational” juror from vetoing a verdict.
Finally, Louisiana claims Ramos oversells Supreme Court precedent as unanimously endorsing unanimous verdicts. From Louisiana’s perspective, these cases did not directly consider the issue, mentioned the standard in passing, relied on other law such as the Federal Rules of Criminal Procedure, or simply identified Apodaca to note “the unusual division among the Justices.”
Assuming that the Sixth Amendment does require unanimous jury verdicts, Ramos next argues that the Due Process Clause requires the same rule in state courts. The Supreme Court has been consistent in recent incorporation cases that the Due Process Clause leaves “no daylight between the federal and state conduct it prohibits or requires.” Thus, Ramos claims, the Court’s incorporation doctrine itself mandates symmetry in jury trial rights, including verdict unanimity.
Apodaca, Ramos maintains, provides weak precedent for jury unanimity to continue as the sole exception to the general rule of constitutional symmetry. This 4–1–1 decision turned on one swing vote by Justice Powell, who was the only justice to conclude that different unanimity rules should apply between federal and state courts. Stare decisis principles do not exist to preserve such a fractured decision, especially when that decision breaks from a long line of contrary authority. And, Ramos emphasizes, “[t]here is perhaps no area of law in which stare decisis holds less force than with respect to precedent refusing to incorporate a Bill of Rights guarantee against the states.” Buyer beware might be Ramos’s stare decisis message to Louisiana.
By contrast, in arguing against Apodaca being upended, Louisiana places great weight in stare decisis. Louisiana and Oregon both relied for decades on this decision in administering criminal justice, and this important expectation should not be disrupted absent “demonstrable error.” Reasserting arguments for the premise that the Sixth Amendment does not mandate unanimity in the first place, Louisiana rejects the notion that so many criminal judgments should be placed in jeopardy. “Ramos needs ‘historical evidence’ that is ‘better than middling’ for the Court to reverse course on this important issue.”
Ramos, in turn, drops two alternate Fourteenth Amendment theories. First, Ramos emphasizes the importance of a unanimous verdict to procedural justice, as evidenced by the traction this rule has in history and practice. Thus, Ramos asserts “a freestanding due process right to unanimity,” independent of the Sixth Amendment. Second, Ramos proposes that the Sixth Amendment unanimity requirement could be incorporated against the states through the Privileges and Immunities Clause of the Fourteenth Amendment. Some justices have identified this theory as a preferable route to incorporation.
Louisiana responds that these arguments were waived in the lower courts, and that a non-unanimous verdict is not so fundamentally unfair as to support an independent due process claim. Moreover, in Louisiana’s view, a privileges and immunities theory offers no better claim for incorporation than Ramos’s due process theory, but this theory differs from due process in more than semantics. For example, the Privileges and Immunities Clause by its terms applies only to “citizens,” whereas the Due Process Clause protects “persons.” Thus, the Privileges and Immunities Clause “may not apply to Ramos himself depending on his citizenship status.”
Ramos also devotes significant attention to the racial dimensions of Louisiana’s law. Ramos reviews historical evidence that Louisiana enacted this law explicitly to marginalize African American jurors when states no longer could exclude African American jurors altogether. Oregon’s law originated from a similar desire to suppress minority viewpoints. A number of the amicus briefs supporting Ramos expand on the pernicious racist origins and continuing impacts of these laws. As the NAACP Legal Defense and Educational Fund explains succinctly, “Louisiana’s non-unanimous jury provision was designed to nullify Black jury service.”
Ramos, however, does not assert a discrete equal protection claim for invalidating his conviction. Instead, Ramos and the supporting amici make the point that, due to this history, the Supreme Court should not defer to state autonomy under principles of federalism or to state reliance on Apodaca under stare decisis. Louisiana and Oregon were not acting as laboratories of democracy in permitting non-unanimous verdicts, but rather seeking to thwart racial justice. This racist practice, Ramos adds, is a “direct affront to [the Sixth Amendment] principle” of representative justice.
Louisiana questions whether this specific non-unanimity rule was the product of racial animus. Louisiana and its supporting amici, including Oregon and several other states, instead highlight an alternate motive as dominant: efficiency. Jury trials that require unanimous verdicts can involve longer deliberations with a higher percentage of hung juries and costly retrials. Unanimous verdict requirements also empower individual jurors to engage in nullification. These legitimate state interests in non-unanimous verdicts, Louisiana and its amici contend, overwhelm any ignominious past of these laws, and are protected by principles of federalism.
Ramos acknowledges some validity to these efficiency interests. Still, in Ramos’s view, “[t]he right to trial by jury cannot be impinged in the name of ‘efficiency.’”
Depending on the Supreme Court’s holding, this case has the potential to carry major significance, or simply to clarify an idiosyncratic rule of constitutional law. For example, if the Court concludes that the problem with Apodaca’s asymmetry was not that it permitted non-unanimous verdicts in state courts, but that it held the Sixth Amendment requires unanimous verdicts in the first place, this holding would disrupt a basic assumption about jury trials for many lawyers, judges, and legislators. In federal court, unanimous verdicts in criminal cases for the first time would become a policy choice, not a constitutional command. And in state courts, that policy choice no longer would deviate from the Sixth Amendment norm.
If the Supreme Court instead reaffirms a unanimous verdict requirement under the Sixth Amendment, and holds that due process requires the same rule in state courts, the disruption might be more modest. Louisiana no longer accepts non-unanimous verdicts, so only Oregon would need to change its current practice. Oregon itself has been evaluating whether to retain this practice. In 48 states and federal courts, this ruling should have no immediate impact.
Louisiana and its supporting amici emphasize, however, that a number of Louisiana and Oregon convictions are in various stages of appeal. These cases may become vulnerable to an easy reversal if Ramos prevails. Even individuals whose judgments are final might challenge those convictions, arguing that this rule should apply retroactively. Louisiana and Oregon claim that these cases could number in the “thousands.” Moreover, seeking to extend the significance of Ramos beyond two states, Louisiana and Oregon predict that a ruling in favor of Ramos could mandate that all states utilize twelve-person juries as well. Louisiana notes that 40 states accept verdicts by juries of fewer than twelve persons, including in felony cases in several states.
Alternatively, the Supreme Court could simply uphold the status quo: the Sixth Amendment requires unanimous verdicts, but in this one circumstance, principles of federalism permit states to adopt non-unanimous verdict rules if they require a substantial majority vote. This holding would give the Court an opportunity to explain why this one constitutional right, in contrast to other provisions of the Bill of Rights, is uniquely amenable to federal asymmetry, and whether any other constitutional rights might be similarly amenable.
Whatever the Supreme Court’s decision in the Ramos case, it should give the Court a valuable opportunity to explore the nature and purpose of the jury trial right in the United States, especially with two recently appointed justices on the Court. Oral argument may more fully illuminate the direction in which the current Court will head in defining and protecting this important right.
Brooks Holland is a professor of law and Curran Chair in Legal Ethics and Professionalism, Gonzaga University School of Law. The author has practiced criminal law in state and federal courts for 25 years. Jessica Trujillo, a third-year law student at Gonzaga, assisted with the preparation of this article.
PREVIEW of United States Supreme Court Cases 47, no. 1 (October 7, 2019): 15–18. © 2019 American Bar Association
In Support of Petitioner Evangelisto Ramos
In Support of Respondent Louisiana