The case of Edwards v. Vannoy will have oral arguments before the Supreme Court on December 2, 2020. At issue is whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review. William McClintock joins us to offer commentary on the case and the oral arguments.
William S. McClintock, Associate, King & Spalding LLP
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Nick Marr: Welcome everyone to The Federalist Society's Teleforum conference call as this afternoon, December 4, 2020, we have a special Courthouse Steps Oral Argument Teleforum on Edwards v. Vannoy.
Yesterday, this Teleforum was scheduled, or yesterday afternoon, and we appreciate your flexibility. We ran into some technical difficulties and we've rescheduled. So we appreciate your flexibility and the flexibility of our speaker. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.
As always, please note that expressions of opinion on the call today are those of our expert.
We're fortunate to have with us this afternoon William McClintock. He's an Associate at King & Spalding. Will's going to give his opening remarks for about half hour. And then we'll go to audience question an answer. So be thinking of those. We'll be looking to you at that time. So without further ado, William, the floor is yours.
William McClintock: Thanks Nick. And as Nick mentioned, my name is William McClintock and I'm an Associate at King & Spaulding in the Special Matters and Government Investigations Practice Group. And our Teleforum today is a recap and discussion of the Supreme Court's oral argument earlier this week in the matter of Edwards v. Vannoy.
And the issue in Edwards is whether the Court's April 2020 decision in Ramos v. Louisiana applies retroactively to cases that are already final and are now on collateral review. Now as many of you may recall, Ramos held that the Sixth Amendment guarantees a right to a unanimous jury in both state and federal criminal courts. At the time that the Ramos decision was handed down, the states of Oregon and Louisiana continued to commit criminal convictions by a non-unanimous jury verdict.
My colleague, from King & Spaulding, John Richter, led the Teleforum discussion when the Court announced the Ramos decision in April. However, given how closely tied the Edwards v. Vannoy oral arguments were to the substance of the Ramos decision, I think it's best, before diving into the Vannoy oral argument, to give a quick recap of the Ramos decision and its progeny.
And so even before discussing Ramos, I think it helps to go back even further to 1972. And in 1972, Supreme Court issued a decision in Apodaca v. Oregon. And that decision had the sort of practical import that the Sixth Amendment guaranteed a right to a unanimous jury in federal court, but that defendants in state trials did not have such a right.
Now the 1972 Apodaca decision was a badly fractured series of opinions from that Court. And it was a 4-1-4 decision. There were four justices who asserted that the Sixth Amendment required a unanimous jury in criminal cases in both federal and state courts. And there were four justices holding that the Sixth Amendment did not require unanimity in either federal or state court.
And only one justice, Justice Lewis Powell wrote a single concurrence holding that the unanimity requirement applied to federal juries but was not incorporated against the states. Since Justice Powell provided the most narrow rationale supporting the judgment in Apodaca, his concurring opinion was controlling. And so for 48 years after the Apodaca decision, Oregon and Louisiana continued to have nonunanimous jury requirements in state criminal court.
So in Ramos, over the 2019-2020 term, the Court was forced to grapple with the meaning of Apodaca and whether the Sixth Amendment, in fact, required unanimous juries in state court. And so by a vote of 6-3 in April 2020, the Supreme Court reversed course and held that the Sixth Amendment does, in fact, establish a right to a unanimous jury that applies in both federal and state courts.
The Ramos opinions, however, were somewhat fractured on exactly what the Court was doing with Apodaca. They were not nearly as fractured as the 4-1-4 decision in Apodaca, but the Ramos decision did leave some ambiguity as to exactly what the Court was deciding.
So six justices, Justice Gorsuch, the late Justice Ginsberg, Justice Breyer, Justice Sotomayor, Justice Kavanaugh, and Justice Thomas all agreed that the Sixth Amendment requires unanimity in federal and state criminal jury trials. Three justices, Justice Alito, Chief Justice Roberts, and Justice Kagan dissented from that decision, largely on stare decisis grounds, and pointing to Oregon and Louisiana as reliant interests. And so that's relatively straight forward. But interestingly, in ways that are relevant for the Edwards v. Vannoy retroactivity decision, the Court fractured on whether the Court in Ramos was, in fact, overruling a governing precedent in Apodaca v. Oregon.
So Justice Gorsuch, Justice Ginsberg, and Justice Breyer joined in an opinion indicating that there was a long history of viewing unanimity as part of the Sixth Amendment right to an impartial jury and wrote that the Court's fractured 4-1-4 decision in 1972, in Apodaca, really didn't provide a governing precedent to rely on. And almost treated it more of an aberration that was being corrected, rather than a governing precedent that was being overruled.
The Court explicitly said that the Court -- that that opinion stated the Court does not need to overrule Apodaca and that even it was established precedent, it was wrongly decided.
Sotomayor and Kavanaugh, who joined partly in the majority opinion by Justice Gorsuch, did not join in that section of the opinion. And in separate concurrences, they both wrote much more explicitly that they thought that the 1972 decision in Apodaca, even if fractured, was governing precedent that the Court was formally overruling.
And so relevant for yesterday -- or, I'm sorry, for Wednesday's argument, you had three justices who, two of them are still on the Court, Justice Breyer and Justice Gorsuch, who explicitly stated that they thought that Apodaca did not provide a controlling precedent that was being overruled. And then at least five of the dissenters, Justice Sotomayor, and Justice Kavanaugh, who thought that whether it was right or wrong, Apodaca was a controlling precedent that was overruled by Ramos.
Interestingly, in the Ramos opinions, both the majority and in some of the concurrences, several justices issued smoke signals or gave an indication as to how they would rule on the very issue raised in this week's case of Edwards v. Vannoy. And therefore, sort of opined on retroactive activity in the Ramos decision.
So Justice Gorsuch, in his opinion, noted back in April that the test that the Supreme Court applies to determine whether a new rule of criminal procedure applies retroactively is sufficiently stringent that no rule has ever met it. And so he was referring to the Court's opinion in 1989 in Teague v. Lane. And Justice Kavanaugh, in his concurrence, also cited Teague v. Lane, which held that a procedural rule does not apply retroactively on collateral review unless that procedural rule is "a watershed rule of criminal procedure that implicates a fundamental fairness and accuracy of the criminal proceeding."
So interestingly, in Ramos in April, you had at least two justices, Justice Gorsuch and Justice Kavanaugh stating that they did not think that the Ramos decision and the unanimity requirement in state courts would apply retroactively for defendants on collateral review. So that brings us to Edwards v. Vannoy, which was argued this week.
Procedurally and factually, the petitioner is Thedrick Edwards, a Louisiana man who is serving a life sentence for his role in a series of robberies and a rape in 2006. Of note, Mr. Edwards is African American. And at trial, the state used a series of challenges to exclude all but one black juror from his jury. And at least one juror, the lone African American juror on the jury voted to acquit on all counts in Mr. Edwards' trial. So none of Mr. Edwards’s verdict, in 2006, were unanimous. And the lone African American juror had voted to acquit him on all of those counts.
Arguing for the petitioner at the Supreme Court on Wednesday was Louisiana-based criminal defense lawyer, Mr. Andre Belanger. Arguing for the respondent was the Solicitor General for the State of Louisiana, Elizabeth Murrill. And then the Court also heard argument from Christopher Michel, and the United States Solicitor General's Office, who appeared on behalf of the United States as an amicus in support of the respondent, the State of Louisiana.
So to give you a quick recap of the arguments. Arguing for Mr. Edwards, Mr. Belanger attempted to account for the wrinkle I described earlier. He attempted to account for the fact that the Court was divided amongst itself on whether Ramos had, in fact, overruled Apodaca. And, in fact, whether or not the Ramos rule was a new rule or an existing rule and Apodaca was merely an aberration that had been corrected.
So Edwards argued to the justices that there are two paths to holding that Ramos applied retroactively. The first would be based on Justice Gorsuch's opinion in Ramos that Apodaca was not controlling precedent. That the right to a unanimous jury was a preexisting rule of criminal procedure. That the Court's 1972 decision in Apodaca was not controlling and did not carry any precedential weight.
And therefore, Belanger argued that the decision in Ramos was not a new rule for purposes of Teague v. Lane. And the second option, he argued, was that even if you assumed that Apodaca was a governing precent, it was simply so wrong that it needed to be overruled. And that Ramos established a kind of watershed rule that would apply retroactively under Teague v. Lane.
And so I mentioned it earlier, but just to help frame the discussion going forward, the decision in Teague in 1989 held that a new procedural rule of criminal procedure announced by the Supreme Court doesn't apply retroactively on collateral review, unless the rule is "a watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of the criminal proceeding." And so, in effect, because Justice Gorsuch had said that I think that if Teague applies, it's probably too stringent to apply retroactively.
I think Belanger was appealing to Justice Gorsuch and saying, hey you don't even have to get Teague v. Lane to apply. You've even said that you don't think Apodaca was controlling. So don't even get to Teague. It's just the Supreme Court reasserting the unanimity principle. Apodaca was an aberration. And therefore, defendants on collateral review should be allowed to avail themselves of Ramos.
Given that not many justices had sort of signed on to Justice Gorsuch's view, I think the weight of Belanger's argument is more that Apodaca was simply so wrong that this is in fact the kind of watershed rule that Teague was pointing to. And therefore, even though it's a new rule of criminal procedure, it should be applied retroactively. So that's the petitioner's argument, in a nutshell.
For the State of Louisiana, Solicitor General Murrill argued that Apodaca was governing precedent. That the states of Oregon and Louisiana have relied upon it for 48 years. And Ramos was clearly announcing a new procedural rule. And that it, therefore, had to meet the Teague exception that it needed to be a watershed rule implicating the fundamental fairness and accuracy of the criminal proceeding. And according to Murrill, a super-majority non-unanimous requirement.
So under Oregon and Louisiana, although unanimity was not required, there were super-majority requirements, 10 votes. And so the fact that there's a super-majority requirement rather than a unanimous requirement is not a rule that implicates the factual accuracy or fundamental fairness of the trial itself. And thus, Ramos did not announce a new watershed rule that would need to apply retroactively on collateral review.
And then Solicitor General Murrill also strongly emphasized the reliant interests of both Louisiana and Oregon, who was an amicus in the case, in relying on Apodaca for nearly 48 years to permit nonunanimous juries to return criminal verdicts. The Solicitor General's office preparing an amicus on behalf of Louisiana largely echoed the arguments of the State of Louisiana. They argued that Ramos should apply prospectively and on direct appeal, but under Teague v. Lane, should not apply retroactively.
The Solicitor General's office appeared to try to sidestep the stare decisis question about the controlling weight of Apodaca and what Ramos had done. And simply argued that, regardless of a precedential weight of Apodaca, the lower courts throughout the United States who had applied Apodaca for nearly 50 years were reasonable to rely on it. And particularly the state court in Louisiana was reasonable to rely on it when Edwards's9 convictions became final.
So the justices, at the oral argument, as with most oral arguments, did not sort of provide clear cut signals as to how they were likely to vote in conference. But Justice Gorsuch was the only justice who seemed particularly sympathetic to the idea that Ramos, in overruling Apodaca, did not create a new rule. He stressed in his questions to petitioner that the Supreme Court held long held that jury unanimity was a requirement. But he seemed to be the only justice that was strongly leaning towards agreeing with the petitioner's view that Apodaca was not governing precedent.
It seemed that the other eight justices were much more focused on discussing whether Ramos created a watershed rule under Teague that would apply retroactively. And what the implications would be for -- whether it went to the fundamental fairness and accuracy of the trial.
So rather than go through each side's argument, I think it would be helpful to sort of identify five or six themes that were sort of recurring through all nine justices’ questions. I think, as everyone knows, under the coronavirus pandemic, and the fact that arguments are being done virtually, the parties are given a couple minutes to make their argument without interruption. And then each justice is given several minutes to ask questions. So all nine justices had questions for both the petitioner and the respondent. And so rather than go through each justice, I think it's much more helpful to identify a couple themes.
As I noted before, the justices did not signal strongly how they were going to vote. But I noted that Justice Gorsuch suggested he'd be willing to apply it retroactively under the argument that Ramos did not announce a new rule and thus, Teague did not apply. Justice Sotomayor, on the other hand, suggested that she was inclined to apply Ramos retroactively, but under the Teague v. Lane exception. Such that if this isn't a watershed rule under Teague v. Lane, she didn't know what would be. And so she at least signaled that she would most likely vote to apply Ramos retroactively.
Of the other seven justices, they provided varying degrees of signals, but I think Justice Alito seemed the most skeptical of the petitioner's argument. And given his strong dissent in Ramos, I think he's most likely -- or most certain to vote not to apply the rule retroactively. But beyond that, I hesitate to venture any guesses as to what the final vote count or decision would be.
So going through the themes that sort of percolated throughout the oral argument. First, we've mentioned a couple times now, did Ramos announce a new rule? And like I said, only Justice Gorsuch seemed particularly sympathetic to that idea, separately. To the extent that Ramos announced a new rule, was it a watershed rule that would apply retroactively? The rest of the Court seemed to focus on this, and they were trying to determine whether the Ramos decision would meet the exception identified in Teague v. Lane. Is it a watershed rule that goes to the fundamental fairness and accuracy of a criminal proceeding?
So one of the questions, and one of the themes is, a couple justices, particularly Justice Kagan and Justice Barrett, both pushed on the petitioner's understanding of what accuracy meant under the Teague v. Lane exception and suggested that perhaps his conception of accuracy was merging with something larger, like substantive fairness. And so they were trying to put some meat on the buns of what does accuracy—is it just factual accuracy, i.e., getting the case right? Or does it go to something larger? Is there a constitutional sense of accuracy such that avoiding imprisoning an innocent person -- does it go beyond just reducing factual errors at the trial?
So related to that, a couple justices were asking, is there empirical evidence that the unanimity requirement renders trials more accurate? Particularly the Chief Justice and Justice Kagan asked Edwards to provide empirical evidence to support his argument that the jury unanimity requirement is a watershed rule because it would improve the accuracy of trials and not applying it would cause an impermissibly large risk of an inaccurate convictions.
And Justice Thomas appeared to latch onto this, as well, and noted that the studies and statistics cited by the parties and the amici struck him as a bit of a mixed bag. And Kagan noted that the evidence was surprisingly sparce, and even surmised that the unanimity rule might allow more guilty people to go free rather than stopping innocent people from being convicted. And so the justices seem to be grappling with, do we have any evidence to show that the unanimity requirement actually renders criminal trials more or less accurate, and seemed frustrated by the fact that there really isn't a lot of evidence that goes one way or the other.
Secondly, another theme is what to make of the fact that there has been no case since Teague v. Lane in 1989 applying a criminal procedural rule retroactively. So multiple justices, including the Chief Justice, Justice Kavanaugh, and Justice Alito noted that there's a long line of cases that have declined to apply new criminal procedural rules retroactively.
So prior to Teague, in DeStefano v. Woods, the Court held that the right to a jury trial did not apply retroactively to cases that have already become final. So Justice Kavanaugh pointed out that there's an asymmetry there, that if the Court was willing to say that the mere right to a jury trial is not retroactive, why would the right to a unanimous jury trial apply retroactively, and referred to it as an asymmetry. And a couple other justices latched on to this.
Justice Kagan noted that even Batson, which banned peremptory jury challenges solely on the basis of race, was determined not to apply retroactively. She pressed the petitioner on that. The petitioner said that Batson is sort of based on a hypothetical. You don't necessarily know how the prosecutors would rule. You don't know what the result would be if the jury pool was different. But you can look at the record in a nonunanimous jury case.
Someone like Mr. Edwards can come forward and say, hey, I would not have been convicted if the State of Louisiana had required unanimity. I know, I have the polling numbers from my jury, and I know that one juror voted to acquit. So I would have had a hung jury in 48 of 50 states if the Ramos decision had applied at the time that I was tried.
And then another theme that the conservative justices, particularly Justice Alito and Justice Thomas, and to a lessor extent, Justice Barrett noticed, is that there was some skepticism as to whether the Court could even apply the rule retroactively at all under AEDPA. And so there's a provision of AEDPA that state that any application for a writ of habeas shouldn't be granted with respect to a claim that was adjudicated on the merits in state court unless the adjudication of the claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law.
And so you have Justice Alito and Justice Thomas saying that under AEDPA, the courts would be barred from granting habeas relief under this because the courts were applying Apodaca at the time and so that was clearly established law, or the reasonable application of Apodaca. And so there's no federal habeas relief that can lie in this situation.
Another major theme that seemed to be focused on primarily by Justice Breyer and Justice Sotomayor is the practical import of applying Ramos retroactively and the potential reliant interests at issue. So the petitioner, both justices asked how many cases would this impact? How much burden would it place on the State of Louisiana if we were to apply Ramos retroactively?
So the petitioner argued that the impact would be relatively minimal, based on estimates from various amicus briefs. There's an estimate that the total universe of potential inmates who could bring a claim would be around 1,600. But that closer to only 1,000 would be able to establish a viable claim. The petitioners would have to show, like Mr. Edwards, that they had been convicted by a nonunanimous jury. And that there are also other groups, such as those who'd be eligible for parole soon would not even be eligible for a new trial.
The Solicitor General for the State of Louisiana pushed back hard against that idea. Said that the new appeals and new trials would submit a substantial burden. A thousand new trials to the state would be difficult. She rejected the petitioner's argument that you could sort of just split these cases up between two or three -- each Assistant District Attorney in the State of Louisiana could then split them up and they'd each have only two or three cases.
She argued, somewhat persuasively, that you would need to have a unit and particular specialized ADA to help with these cases. The Solicitor General argued that there would also be a ripple effect on federal inmates because you might have inmates who had sentences in federal court that were based, in part, on state convictions. And there could be several hundred of those.
So there was a focus on the practical import. And the only justice who seemed completely dismissive of this argument was Justice Gorsuch. And he noted that if it's a watershed rule of constitutional criminal procedure, then it really doesn't matter whether it poses a challenge to the states. And that he was less willing to entertain the practical import questions that were raised by the State of Louisiana.
So that is, at a very high level, what was covered in the oral argument on Wednesday. As I noted, I think not to venture too firm a guess, it seems that Justice Gorsuch and Justice Sotomayor would be leaning towards voting to apply it retroactively. It's unclear whether any other justices would be willing to join on to that view.
And so Nick, I think at this point, we're right about the half an hour mark. I am happy to answer any questions from anyone who has had the patience and forbearance to stick with us through this. And happy to discuss any questions anyone has.
Nick Marr: Great, thank you. And William, it doesn't look like we have any questions yet. So I'll send the floor back to you, if there's anything you didn't cover or want to get to.
William McClintock: Thanks, Nick. I don't have much beyond the oral argument. I will say that I think that the oral arguments by telephone create a very interesting dynamic on the Court. I think it's one that, at least personally, I hope continues perhaps in the period after the pandemic, which is hopefully soon, and when oral argument occurs in person. There's a different flow to the arguments when you go justice by justice.
I know Justice Thomas had established a reputation for not asking many questions during oral argument. And he's said publicly before that the reason he did not ask questions is that he wanted to give the advocates time to make their argument. That he did not like justices talking over each other or arguing the case through their questions.
But given the sequencing of questions, Justice Thomas now asks quite a lot of questions. Good questions, in my opinion. The petitioner and the respondent are given a couple minutes to make their summary argument at the beginning, at the end, free of questions so there's not quite the risk of a scramble of questions at the beginning or at the end.
And I find it to be a very interesting and sort of -- it's nice when you're trying to summarize for a teleforum to be able to go through and think through how each justice is thinking of the case, and what issues they're focused on. I suspect it might make it easier for oral advocates to prepare, knowing that they're going to work through each of the nine justices, one at a time, on their questions.
So I offer that as sort of a more wholistic observation about oral argument at the Court during the COVID-19 pandemic, rather than a specific observation about Edwards v. Vannoy.
Nick Marr: Great. So we haven't gotten any questions in the meantime. I'll offer one more call, if you'd like to get in before we close. But, William, unless you have anything in closing more, I think we'll finish it up this afternoon. Let me know.
William McClintock: That sounds fine to me, Nick. I appreciate it. I hope everyone has a very nice Friday evening and a relaxing weekend.
Nick Marr: Thanks very much. And on behalf of The Federalist Society, William, I want to thank you for the benefit of your valuable time and expertise. To our audience for calling in, and as always, we welcome your feedback by email at email@example.com. Be checking our website and your emails for announcements about upcoming Teleforum calls. We have a busy week next week so check those out. Thanks everyone. Have a great weekend. 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.