Due to technical difficulties, this teleforum has been rescheduled for Friday, May 21 at 1:30 PM ET.
On May 17, 2021, the Supreme Court released its decision in the case of Edwards v. Vannoy, which focused on whether the Supreme Court’s decision in Ramos v. Louisiana applied retroactively to cases on federal collateral review. By a vote of 6-3, the judgment of the U.S. Court of Appeals for the Fifth Circuit is affirmed. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Barrett. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Gorsuch filed a concurring opinion joined by Justice Thomas. Justice Kagan dissented, joined by Justices Breyer and Sotomayor. Kent Scheidegger joins us to discuss this decision and its implications.
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Guy DeSanctis: Welcome to The Federalist Society’s teleforum conference call. This afternoon, May 21, we discuss the Courthouse Steps Decision Edwards v. Vannoy. My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.
Today, we are fortunate to have with us Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.
With that, thank you for being with us today. Kent, the floor is yours.
Kent Scheidegger: Thank you. This week, the Supreme Court made a significant and, in my opinion, long overdue change in the law of retroactivity. The decision came in the case of Thedrick Edwards, who committed a series of brutal crimes in Louisiana 15 years ago, including armed robbery, kidnapping, and rape. One rape was committed by Edwards personally and the other by his accomplice. Edwards confessed to these crimes. Despite the strength of the evidence, there was one holdout juror on the rape and kidnapping counts and one of the robbery counts, and two holdout jurors on four other robbery counts.
At the time of the trial, Louisiana permitted nonunanimous verdicts, and its law in that regard had been expressly upheld by the Supreme Court in 1972. Edwards’s claim that nonunanimous verdicts are unconstitutional was rejected on the basis of this precedent by the state courts, the federal district court, and the federal court of appeals.
While his petition was pending in the Supreme Court, that Court overruled its precedents and decides that unanimous juries would now be required in all states. In response to the argument that convicts with final convictions, as opposed to those with pending initial appeals, would seek to have their convictions overturned, the lead opinion in Ramos v. Louisiana said, quote, “The worries outstrip the facts,” and discussed how very restrictive the rule for retroactivity on habeas corpus is.
The use of habeas corpus to attack a judgement in a criminal case has ebbed and flowed throughout American history. At the founding, there simply were no such attacks allowed, provided that the convicting court had jurisdiction. The use of habeas corpus as a defect of second appeal expanded in the early 20th century, and then grew enormously in the ’50s and ’60s.
The decision in Teague v. Lane in 1989 was part of a general retrenchment in habeas corpus during the period that followed. In the Teague decision and the earlier decision in Griffith v. Kentucky, the Supreme Court abandoned the approach to retroactivity that had been developed during the Warren Court years and instead adopted an approach proposed by Justice Harlan in two dissents.
Under this view, all new rules established by the Supreme Court are fully retroactive to cases that are pending on the initial appeal at the time they are announced. Rules that change the substantive law regarding what acts can be made criminal and what punishments can be imposed also apply retroactively on collateral reviews, including habeas corpus. However, new rules that change the procedure followed at trial are generally not retroactive on habeas corpus.
Justice Harlan first proposed this rule only eight years after the landmark decision in Gideon v. Wainwright. Because the right to appointed counsel for indigent defendants had such an enormous impact on the reliability of the trial, he noted an exception to his proposed rule to explain why it would continue to concur in extending retroactivity to any Gideon claimants still in jail at the time. In Teague, the Court endorsed this exception while noting that it was highly unlikely that many rules as central to fundamental fairness as Gideon remained to be made.
In the decades that followed, the Supreme Court made many new rules of procedure, but it did not apply any of them retroactively on habeas corpus. It has never fully explained the exception, but it regularly said that whatever may be said for the new rule in question, it did not have the, quote, “primacy or centrality of Gideon.”
Particularly relevant is Justice Scalia’s opinion for the Court in Summerlin v. Stewart. That case involved the retroactivity of a decision that had extended the jury trial right to the finding of the aggravating factor that made a case eligible for capital punishment. Summerlin noted that the extension of the jury trial right itself to the states was not so fundamental as to require retroactive application, so the extension of that right to a new issue could not be. Summerlin also specifically rejected the argument that the new rule was retroactive because it better fit the original understanding. That argument goes to whether the rule is correct, not whether it is retroactive.
Given the body of precedent established as of last year, it would seem to be a very easy case, that the rule of Ramos v. Louisiana was not retroactive on habeas corpus, and the lead opinion in that case itself suggested as much. Nonunanimous juries have been tolerated in two states for decades, and the Supreme Court had not seen fit to take up the issue until last term. England, where the unanimity requirement began, dropped it in 1967. The holdout juror for acquittal who convinces his fellows to come around made a good movie, but it rarely happens in practice. In practice, in states that do require unanimous juries, either the holdout comes around or the hung jury results in a plea bargain or a conviction in the second trial in almost all cases.
In Monday’s opinion in the Edwards case, Justice Kavanaugh’s opinion for the Court recited this history and noted the important interest in keeping criminal judgements intact, despite a later change in constitutional interpretation when that change does not raise a major doubt of the accuracy of the earlier procedure.
The Court said, quote, “When previously convicted perpetrators of violent crimes go free merely because the evidence needed to conduct a retrial has become stale or is no longer available, the public suffers, as do the victims. Even where the evidence can be reassembled, conducting retrials years later inflicts substantial pain on crime victims who must testify again and endure new trials. In this case, the victims of the robberies, kidnappings, and rapes would have to relive their trauma and testify again 15 years after the crimes occurred.”
These considerations are too often ignored by courts, and it’s good to see them recognized by the Court in this case. Applying the Teague exception precedents, the Court concluded that the Ramos rule was not the kind of watershed rule, as it is called, that qualified for a Teague exception.
The petitioner in the dissent offered three reasons to find retroactivity, none of which can be squared with precedent, the Court said. First, there is the claim that the significance of the jury trial right demands retroactivity. But Teague itself made clear that importance of a rule for reasons of its effect on the accuracy of the verdict is not enough. Although unanimous juries are a tradition going back to the common law, a rule that one or two holdout jurors cannot prevent conviction does not make a trial fundamentally unfair or its result unreliable.
Second, and relatedly, there is a claim that because the rules is a return to the original understanding, it should be retroactive. That too has been rejected in multiple precedents. The Summerlin case mentioned earlier rejected retroactivity for a rule based on original understanding. Crawford v. Washington, which returned to the original understanding of the Confrontation Clause, was also not retroactive under Teague.
Third, Edwards claimed that the effect of the Ramos rule in preventing racial discrimination requires retroactivity. The simple answer to that argument is Teague itself. That case denied retroactivity to a rule against intentional, direct discrimination in preemptory challenges, while the Ramos rule has only tenuous and historical connections with discriminatory intent.
The Court concluded, quite correctly in my view, that under a long line of retroactivity precedents, the Ramos rule does not qualify for the watershed rule exception and is not retroactive on collateral review. Indeed, the Court really could not have ruled in favor of retroactivity without undermining the entire line of precedent and effectively abandoning the reasoning of Summerlin in particular.
However, the Court went further and said it was time to abandon the pretense that any such exception still exists at this late date. The Court has noted many times that it is unlikely that any such rule remains to be made, but the Court has at long last made it official. Sixty years after the Warren Court began federalizing and constitutionalizing nearly every rule of criminal procedure, there simply are no defects left of the magnitude of the one corrected in Gideon, and therefore, no rules of Gideon magnitude remain to be made. Any changes remaining to be made are fine tuning by comparison. The existence of this phantom exception serves only to make lawyers brief it and courts decide it time after time, always with the same result.
The decision was 6-3, with Justice Kagan writing the dissent, joined by Justices Breyer and Sotomayor. There are separate concurrences by Justice Thomas and Gorsuch worth reading, but we will skip them now in the interest of brevity. The dissent is surprisingly shrill, accusing the majority of abandoning respect for precedent and of needing to abandon the second exception in order to reach its result. This is very strange. It is definitely not Justice Kagan’s finest hour.
The majority certainly did not need to abandon the second exception to reach its result. It held that Ramos did not qualify for that exception by applying the precedents correctly. It is the dissent who would abandon precedent by expanding that exception in ways already rejected by multiple precedents. Finally pronouncing the second exception dead merely takes the step that numerous precedents over many years have said was coming.
The Edwards decision applied precedent correctly to spare victims of heinous crimes like the ones in this case from having to go through retrials. They cleaned up the long-standing anomaly in the law of retroactivity. Hopefully, we will see decisions like this one from the current Court. Thank you.
Guy DeSanctis: Thank you for that. We’ll now go to audience questions. Is there anything else you’d like to talk about in the meantime while we wait for our first question?
Kent Scheidegger: Well, as I said, the concurring opinions are quite interesting. Justice Thomas noted the importance that the case could have been decided under the statute, the Antiterrorism and Effective Death Penalty Act of 1996, instead of under the Court’s Teague doctrine, which is true. But I think it was useful to clear this area up. Also, the retroactivity does affect state courts as well as federal courts, so deciding it under Teague cleared it up for state courts as well, for those that choose to follow Teague.
Justice Gorsuch indicated an indication that he was willing to go much further back toward the original understanding of the law of habeas corpus and take a more restrictive view of what claims can be made on habeas corpus at all. That’s an interesting viewpoint, and we’ll see if he goes any further with that.
Guy DeSanctis: Thank you for that. Our first question.
Caller 1: Hi. I came in late, so if it missed this, my apologies. Does the decision have any implications for civil cases? Thanks.
Kent Scheidegger: Civil cases, no. The Teague rule, which is the subject of this case, is purely for criminal cases.
Caller 1: Thank you.
Guy DeSanctis: Thank you for that question. At the moment, it does not appear that we have any more questions, so do you have any closing comments you’d like to make?
Kent Scheidegger: Well, I think I already concluded at the end of the talk. I do find this an encouraging development, and I hope we will see more such cases from this Court. I look forward to it.
Guy DeSanctis: Thank you. On behalf of The Federalist Society, I want to thank our expert, Kent Scheidegger, for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at firstname.lastname@example.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.