Omnibus aut nihil – All or nothing

” When less than unanimity is sufficient, consideration of minority views may become nothing more than a matter of majority grace .”

– Justice William J. Brennan Jr. in majority opinion of Johnson v. Louisiana

Procedural History

In 2015, petitioner Evangelisto Ramos was charged with second degree murder in the Criminal District Court of Orleans Parish in Louisiana. After the presentation of evidence, Ramos was convicted of the offense charged on a ten of twelve jury verdict. Ramos appealed his conviction and sentence to the Fourth Circuit Court of Appeals of Louisiana on four grounds:

1. The evidence was insufficient to support conviction
2. The prosecution’s use of “rape” and “sexually assaulted” in opening and closing statements influenced the jury by directly challenging Ramos’ claim that the sexual contact he had with the victim was consensual
3. The conviction was based on racial profiling
4. The trial court should have accepted his motion requiring a unanimous jury verdict for conviction

The Fourth Circuit affirmed the conviction and sentence for the following reasons:

1. Although the evidence was circumstantial, it was sufficient to uphold a conviction for second degree murder
2. In reliance of Louisiana Supreme Court Case State v. Reed, a verdict will not be overturned for this reason unless the court is “thoroughly convinced” that the statements did influence the jury’s verdict, and the Fourth Circuit was not
3. Evidence was substantial enough to link the defendant to the murder as a suspect, and there was no racial profiling in the investigation
4. In reliance of United State Supreme Court Case Apodaca v. Oregon, unanimity is not required for conviction in state courts
   • Also in reliance of State v. Bertrand, the Louisiana Supreme Court has upheld non-unanimous jury convictions in the past

The defendant then appealed his case to the Louisiana Supreme Court, who denied review. Following this denial, the defendant petitioned a writ of certiorari to the United States Supreme Court. The question he presented before the court is this:

Does the Fourteenth Amendment fully incorporate the Sixth Amendment guarantee of a unanimous verdict?

My Thoughts on the Case and How I Think the Supreme Court Should Rule

I agree with the Fourth Circuit’s affirmation of Ramos’ conviction on the first three grounds of his appeal; the question is whether his fourth tenant of appeal has merit. It seems obvious to me that a unanimous jury should be required for conviction, but I have this belief mostly from movies and books where only one juror is necessary to hang the jury. Even with the grisly facts of the case, I still think a unanimous decision should be reached for conviction, but I’m going to have to come up with better reasoning than that’s how it is in movies.

Today, Oregon is the only state to still allow non-unanimous convictions (Louisiana amended their constitution in 2018 requiring unanimous convictions for felony convictions). Just viewing this issue in light of the Fourteenth amendment which guarantees equal protection for U.S. citizens, I think the Supreme Court should rule that non-unanimous convictions are unconstitutional. At the time of Ramos’ trial, a citizen in a jury trial would not be convicted on any less than a 12-0 jury in 48 states. Another way to put it would be that citizens in two states observed less protection from non-unanimous juries than the other 48. The same crime, facts, and presentation of evidence might have different results in Portland than in Seattle.

I believe the burden of proving guilt beyond a reasonable doubt also points to the unconstitutionality of non-unanimous juries. My gut feeling is that even one juror disagreeing with the prosecution’s charge of guilt seems like a failure on the prosecution’s part of proving guilt beyond a reasonable doubt. All but one state follows this line of thinking and requires a retrial if this happens.

The opening quote from Justice Brennan considers a key aspect of the underlying factors of this case. Why should one or two jurors’ opinions be discounted in favor of the opinions of the other ten when deciding guilt? The jury has been recognized as representing a cross-section of the community. How can a non-unanimous jury give equal voice to the whole community when a slice of the community can effectively be silenced? The non-unanimous amendment to Louisiana’s constitution gave the state the means to ignore the values and opinions of the black communities in the state who had an equal right to voice their opinions on juries and be heard.

To address the specific question that Ramos raises in his writ of certiorari, I think the Supreme Court has shown consistent incorporation principles that ought to be followed in this case. When a court proceeding has been found to be required by the Constitution based on any number of the Bill of Rights (here specifically the sixth and seventh), the Supreme Court has fully incorporated that proceeding to apply to state court proceedings. I don’t have any cases to cite, as I am not well-versed in this (or really any) part of Constitutional Law, but my understanding from the oral arguments for this case leads me to believe that the tendency towards incorporation in this case is very strong if Apodaca is reversed and it is held that the sixth amendment does require unanimous verdicts.

I have now outlined four reasons why I believe the Supreme Court should incorporate the right to a unanimous jury verdict to the states. They are summarized as follows:

1. The minority (now a minority of one) of states that do not require unanimity leave citizens of those states less protected than citizens of other states
2. Guilt beyond a reasonable doubt should be called into question when even one juror fails to agree with the prosecution’s assertions
3. Failing to require unanimity allows the state to discount the voices of minorities that might be present in the community and therefore the jury
4. The strong history of Supreme Court incorporation would almost require incorporation if the Court finds that the sixth amendment does require unanimity

Analysis of Louisiana’s Argument

Louisiana makes one principle claim in support of their belief that non-unanimous juries are constitutional, and I think there are a number of flaws with it. Their central claim is this:

Nothing in the text, structure, or history of the sixth amendment requires unanimous verdicts in any jury trial.

In gathering my information for this case, I read the oral arguments presented by both sides before the Court on October 7, 2019. Many of my opinions developed as I read the issues that the justices brought up and considered the counsels’ answers. I have four problems with Louisiana’s claim, most of which were brought up in oral argument.

The first problem with their argument relates to the discussion that took place in 1789 on whether to include the word “unanimous” before the word “jury” in the sixth amendment. It seems as though this was a hotly debated issue, but the way it was presented in oral argument makes it seem as though the debaters understood that it was self-evident that a jury verdict be unanimous to uphold conviction. Even if the debates do not make this obvious, there seems to be a very strong Common Law tradition of requiring unanimity in order for jury verdicts to be upheld. These views directly contradict Louisiana’s claim.

I think the biggest problem I have is that it seems like Louisiana is ignoring (and in some cases refuting) the one factor that would skew this case in their favor: the precedent set by the Supreme Court in Apodaca. Multiple justices questioned Louisiana’s petitioner, Elizabeth Murrill, if she really wanted the Court to consider the issue of unanimous juries afresh. Murrill repeatedly claimed that Apodaca was not controlling in this case, and that since unanimous juries are not required by the sixth amendment in the first place, the case should be ruled in Louisiana’s favor. It seems as though this line of reasoning also kills her reliance claim. Why bring up the fact that Louisiana has been relying on the Apodaca decision in their practices of allowing non-unanimous juries if you want to throw out the relevant precedent and consider the case afresh?

This third problem is one that I do not have a lot of experience with, but which would be damning of Louisiana’s argument if it held up. The fact that there is settled precedent that requires unanimity in civil trials (for both federal and state trials) and for criminal trials in federal court seems to point to non-unanimous verdicts in state criminal court being an idiosyncrasy that ought to be remedied. Again, I do not have cases to cite, but the arguments made in oral arguments (particularly by Justice Gorsuch) seem to support this claim.

A final issue that relates to the above paragraph is a common sense one. How could the Supreme Court require unanimous juries for trials in which property is at stake, but not require it for trials in which life and liberty is at stake?

Conclusion

I restate my belief that the Supreme Court should rule in favor of Ramos and incorporate the right to a unanimous jury to apply to all state trial procedures.

This was my first attempt at a case summary and analysis, and I honestly had a lot of fun researching this case. My legal arguments might not be polished enough for me to go before the Supreme Court to argue this issue, but as I continue to examine more cases, I will no doubt become more astute in my analysis and more clear in my reasoning. Thank you for reading, and I am absolutely open to any comments or discussions you might have about the case.