Louisiana split jury law…

U.S. Supreme Court casts skeptical eye on Louisiana’s split-jury law
BY JOHN SIMERMAN | STAFF WRITER PUBLISHED OCT 7, 2019 AT 7:15 PM

John Simerman

Louisiana Solicitor General Liz Murrill found herself on the defensive Monday as she struggled to persuade the U.S. Supreme Court that the Constitution does not require juries to be unanimous — in Louisiana, in Oregon or even in federal courtrooms.

That was the position that Murrill staked out as she defended the high court’s 1972 decision in Apodaca v. Oregon, which endorsed the use of split-jury verdicts in Louisiana and Oregon — the only states to allow them.

In a split verdict of its own, the court in Apodaca said federal juries must be unanimous but that states may adopt their own jury rules.

On the first day of its new session, the Supreme Court on Monday revisited that fundamental question for the first time since, in the case of Evangelisto Ramos, who was convicted in 2016 of second-degree murder on a 10-2 vote by a New Orleans jury and sentenced to life in prison.

Justices on both ends of the ideological spectrum left little doubt of their views that the same rules should apply in federal and state criminal trials. Much of the questioning Monday revolved around figuring out a way to justify doing away with the Apodaca decision, given that Louisiana and Oregon have relied on it as a staple of criminal justice for 47 years.

Advocates argue that the Apodaca ruling is obsolete and that the court should give it little, if any, precedent when considering whether to let it stand as an anomaly.

Arguing for Ramos, Jeffrey Fisher, a professor at Stanford Law School, encouraged the court to overturn Apodaca as illogical and obsolete, describing the ruling as an “isolated relic of an abandoned doctrine.”

Tilting the scales: What to know about Louisiana’s controversial non-unanimous jury law
The high court agreed to hear Ramos’ case just months after Louisiana voters jettisoned split verdicts at the polls. The nearly 2-1 vote ended a 120-year practice rooted in the Jim Crow era, but only prospectively; it applies only to people tried for crimes committed in 2019 or later.

At stake in the Ramos case, at minimum, are scores of convictions from the last few years in Louisiana and Oregon that remain on appeal and could be upended should the court overturn the Apodaca decision. In Louisiana, the decision could also affect defendants awaiting trial for crimes committed before this year.

Murrill argued that the fallout could be much more significant than that. Each of the roughly 32,000 inmates now serving time in a Louisiana prison, she said, might file an appeal on the basis that their conviction — whether by guilty plea or trial — was obtained under jury rules since deemed invalid.

But Justice Stephen Breyer waved off that figure as overblown, saying any change would likely only affect those actually convicted by split verdicts.

“With all the work gone into this, has anybody got any rough idea of what percentage of those people who are convicted are convicted by nonunanimous juries?” Breyer asked.

“There’s just no reliable data,” she responded.

Chief Justice John Roberts also was among those asking for numbers.

“Is the reason you don’t know because the jury is not typically polled or — or what?” he asked.

“Because it is not always polled and … even in some cases where it may have been, it may not have been recorded or kept,” Murrill responded.

In fact, an exhaustive review by The Advocate found that 40% of felony jury trials end with split verdicts and that they disproportionately affect black defendants. The review also found, as Murrill suggested, that frequently there is no specific record of how jurors voted.

Justice Ruth Bader Ginsburg said predictions of chaos in the courts were beside the point at this stage. Whether such a ruling would apply to the legions of convicts now serving time in prison after exhausting their appeals is one for later, she said.

“The case of retroactivity to convictions that are already final is not before us,” she told Murrill. “It would come before us in a case if you lose this one, but that is not a question that we can properly address here.”

Justice Neil Gorsuch, meanwhile, suggested that perhaps the constitutional rights of those imprisoned on the basis of split verdicts were as important, if not more, as the headaches overturning Apodaca would create for Louisiana.

“I can’t help but wonder, well, should we forever ensconce an incorrect view of the United States Constitution for perpetuity, for all states and all people, denying them a right that we believe was originally given to them, because of 32,000 criminal convictions in Louisiana?” he asked.

Murrill found herself in the awkward position of asking the court to respect the precedent it set in the Apodaca decision, while overlooking the fact that in that decision, five of nine justices said they believed the Sixth Amendment required unanimous juries.

Under questioning from Justice Brett Kavanaugh, the court’s newest member, Murrill acknowledged that her argument was “concededly not good” if the court decides that the Sixth Amendment’s right to a jury trial requires a unanimous jury.

But she claimed there is substantial historical support for the notion that unanimity wasn’t spelled out in the Sixth Amendment because it was considered and rejected by the Framers, not because it was assumed. Opponents of the split-verdict law are now trying to “add back words that the Senate rejected in 1789,” she argued.

The court seemed dubious. Justice Sonia Sotomayor noted that Alexander Hamilton himself had deleted a reference to the right to a unanimous jury because “it’s so self-evident, we don’t need to include it.”

Several justices probed the lawyers over the constitutional differences between unanimity and jury size, given the court’s ruling in a different case that juries with as few as six members could return valid, unanimous verdicts.

That raised questions among the justices over whether unanimity was more inherent to the notion of a jury among the Framers than jury size. Fisher argued it was, based on a stronger tie to common law at the time.

Kavanaugh was the first to raise the question of the racial spark of Louisiana’s law, noting its origins “in a desire, apparently, to diminish the voices of black jurors in the late 1890s.” Kavanaugh asked if it was a relevant counterpoint to Murrell’s claims that, essentially, the court let Louisiana and Oregon rely on split verdicts for too long to overturn them now.

Fisher responded that if the state wants to argue about its reliance on the law over more than a century, “it’s perhaps justifiable to look at the origins of the law that it’s defending.”

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