In April of this year, the Supreme Court decided Ramos v. Louisiana, holding that the Sixth Amendment’s[1] requirement of jury unanimity in criminal convictions was incorporated against the states.[2]

At the time of Evangelisto Ramos’s conviction, Louisiana permitted non-unanimous convictions based on 10-to-2 or 11-to-1 jury votes. In the time between his conviction and his appeal, Louisiana changed its law to require unanimous convictions.[3]  

In opposing Ramos’s claim, Louisiana argued, among other things, that requiring unanimous jury verdicts would cause chaos for its criminal justice system.[4] For one thing, anyone convicted by a non-unanimous jury whose appeal had not yet become final would have to be retried. And for another, defendants whose non-unanimous convictions had become final would challenge them on collateral review.[5] 

The Court rejected these two arguments. As to the first, it acknowledged that the decision would “surely impose a cost” but said that cost did not outweigh the constitutional harm that permitting non-unanimous verdicts imposes on defendants.[6] As to the second, the Court noted that the test for whether a new rule of criminal procedure applies retroactively is so stringent that it has never been met.[7] 

As Louisiana predicted, defendants convicted by non-unanimous juries are now challenging their convictions. At least for now, however, that burden seems much lighter than Louisiana expected. Orders granting writs for review in light of Ramos began appearing on the Louisiana Supreme Court’s docket a month after the Supreme Court decided that case.[8] The first day such orders appeared, there were more than thirty, but since then, if any appear among the court’s list of orders, there are at most a handful.

The Louisiana Supreme Court has quickly adapted to handle these cases. In cases where a defendant was convicted by non-unanimous verdict and his or her appeal was not yet final, the Louisiana Supreme Court issues a unanimous, form, per curiam order remanding the case “for further proceedings and to conduct a new error patent review in light of Ramos.”[9] The order also provides that even if the defendant abandoned or failed to preserve his or her objection to the non-unanimous verdict, the lower court should still consider the issue.[10]

In at least one case, the record did not indicate whether the verdict was unanimous because “the district court ceased polling the jury after the first ten jurors.”[11] In that case, the Louisiana Supreme Court ordered the lower court to “ascertain whether the verdict was unanimous.”[12] Chief Justice Bernette Johnson dissented, arguing that the jurors’ memories will be “tainted” by all the publicity that has surrounded the jury unanimity issue in the four years since the defendant’s conviction, and so it would be better to simply remand for a new trial.[13]

So far, it does not appear that any challenges to final non-unanimous convictions have made it to the Louisiana Supreme Court on collateral review. It is clear, however, that the court is expecting those challenges in the future. Its form per curiam order includes the line, “Nothing herein should be construed as a determination as to whether that ruling will apply retroactively on state collateral review to those convictions and sentences that were final when Ramos was decided.”[14]

Although Ramos has not imposed a significant burden on the Louisiana courts yet, the number of potential collateral review challenges likely far outstrips the number of non-final non-unanimous convictions subject to immediate retrial. After all, Louisiana has permitted non-unanimous verdicts since 1898.[15] The true burden of Ramos, therefore, remains to be seen.

It is also nearly certain that at some point in the future the Supreme Court will be asked to decide whether the Ramos rule applies retroactively. If it holds that it does—which would be a first[16]—then Louisiana’s courts, and the courts of any other states that have permitted non-unanimous verdicts, will most likely be deluged by collateral challenges.

 

Note from the Editor:

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[1] U.S. Const. amend. VI; see also Thompson v. Utah, 170 U. S. 343, 351 (1898) (holding that the Sixth Amendment’s guarantee of a jury trial included the historical requirement of unanimity); Patton v. United States, 281 U.S. 276, 288 (1930) (same).

[2] 140 S. Ct. 1390 (2020)

[3] Id. at 1407.

[4] Id. at 1406.

[5] Id. at 1407.

[6] Id. at 1406.

[7] Id. at 1407.

[8] See Court Actions/May 27, 28, and June 3, 2020, Louisiana Supreme Court, https://www.lasc.org/Actions?p=2020-020 (last visited, July 10, 2020).

[9] See, e.g., State v. Kendell Shanner Cagler, No. 2018-KO-01988 (June 3, 2020), available at https://www.lasc.org/Opinions/2020/18-1988.KO.PC.pdf.

[10] Id.

[11] State v. Dermaine Norman, No. 2020-K-0109 (July 2, 2020), available at https://www.lasc.org/Opinions/2020/20-0109.K.PC.pdf.

[12] Id.

[14] See, e.g., Kendell Shanner Cagler, No. 2018-KO-01988.

[15] Ramos, 140 S. Ct. at 1393.

[16] Id. at 1407