By E. King Alexander, Jr. . . . Amidst intense political concern about the fate of Roe v. Wade (1973) particularly, and that of stare decisis (binding precedent doctrine) generally, the Supreme Court’s April 20 decision in Ramos v. Louisiana (6/3, majority opinion by Gorsuch) directly affects only criminal jury trials but also at least hundreds of felony convictions, albeit in just two states, Louisiana and Oregon.
The first of the two Ramos holdings is that the federal Sixth Amendment right to trial by jury guarantees to every accused person that they cannot be convicted by a so-called verdict of guilty that isn’t actually unanimous. Every single juror must have voted to convict: “The truth of every accusation [must first] be confirmed by the unanimous suffrage of twelve of his equals and neighbors …” said Lord Blackstone whose Commentaries on the Law of England (1765) informed the Founders. This rule has always governed federal trials.
The second Ramos holding is that the same rule was meant to be imposed on the states via the Fourteenth Amendment, ratified 1868. Nevertheless, in 1898 following black male suffrage and jury service, Louisiana started convicting in non-capital cases by as few as 9 to 3, adjusted in 1974 to a minimum of 10 to 2. Oregon inaugurated non-unanimous guilty verdicts in 1934.
Both states originally did this for overtly racially or ethnically discriminatory reasons, the discussion of which Ramos dissenter Alito (joined by Roberts and Kagan) objected to greatly. After all, this wasn’t an Equal Protection Clause case (even though it could have been). Thomas, concurring in the result, prefers, for state effect, the vehicle of the Privileges or Immunities Clause, which would have limited the right in state courts to “citizens” versus “persons,” despite the fact that Timbs v. Indiana (2019)(9/0, Thomas again concurring in the result for the same reason) made clear that there is no such thing as a lesser “state version” of anything in the Bill of Rights; the federal and state rights are one and the same. All three Clauses are in the Fourteenth Amendment, so take your pick. The justices did, in a set of opinions that fractured over such minutiae.
What the court had to do to reach this very correct and just result was get rid of Apodaca v. Oregon (1972). They did, one way or another. Gorsuch (and apparently Ginsburg and Breyer who joined him fully) believe Apodoca was never precedent, so they didn’t have to say “overruled.” Sotomayor opted out of that part, saying that they should overrule Apodaca explicitly, on principle. Kavanaugh maybe went a little further, saying that’s what they actually did. The rest of the writing is a lot of back-and-forth about the motives of states and stare decisis generally, because of, you know, that other case. They didn’t name it. It’s in the first sentence of this article.
Ramos is huge news for people facing trial for, or convicted of, non-capital hard-labor felonies in Louisiana or most felonies in Oregon. The decision immediately changes long-standing jury procedure in those states and explicitly prevents other states from adopting their goalpost-lowering schemes. Unanimous verdicts are taken for granted everywhere else in the country, but in the courts of those two states, this is mind-boggling, a game-changer.
When I started defending Louisiana court-appointed felony cases in 2006, I was fifty years old and joked it was “my retirement gig”— not! Local grand juries indict on the flimsiest evidence, and testimony of the accuser alone is sufficient to uphold a conviction. Clients, even the innocent, deeply feared two things: Draconian sentences and conviction by non-unanimous verdicts. If they understood the hell on earth that is sex offender registration, they feared that too, or especially. Prosecutors weren’t getting fully-unanimous verdicts against me in sex cases, and they haven’t, not once in fourteen years. This soon gave me great clarity on the necessity of preserving the Sixth Amendment trial by jury and Fourteenth Amendment Equal Protection grounds for requiring verdict unanimity. A defense lawyer knows the important number: “How many jurors must I persuade to stop the mob?” Ten of the jurors are liable to be villagers with torches, anxious to convict. Under the rule abolished by Ramos, they could do that without the other two and frequently did. When the votes of two jurors don’t even have to count, the numerous he-said/she-said sex cases, particularly, are nearly impossible to defend. That made me an activist.
The first part of the victory is finished. Now who will be entitled to relief because of Ramos, and when? Will perfection of the Sixth Amendment issue in the record at every level have been necessary? Will a non-unanimous conviction be required for relief? That, and the case being pending (not tried yet) or on direct appeal, is as much as the majority presently admits. But every time an illegal jury instruction is given over contemporaneous objection, that’s not subject to the “harmless error” standard; that’s reversible error as a matter of law, right? So even my clients on appeal who were convicted unanimously, after I challenged pretrial and contemporaneously objected to the unconstitutional jury instruction, should get new trials, right? It’s a “structural defect” going to the integrity of jury deliberations, right? The Ramos majority had a stake in playing down the broader implications, while the dissenters howled about some possible consequences and feared others so much that they never mentioned them.
What about those prisoners whose appeals are already final? The Ramos opinions mention a retroactivity doctrine, referencing Teague v. Lane, (1989). Teague retroactivity, which is only for post-conviction relief, meaning convicted, beyond appellate review, and still incarcerated, is supposedly as rare as unicorns when it comes to a new procedural rule, more often seen for substantive issues such as mandatory life sentences for defendants under eighteen at the time of a homicide (see Montgomery v. Louisiana, 2016), applying the rule of Miller v. Alabama (2012) to long-convicted prisoners who never raised the Eighth Amendment proportionality issue in their records at all. Gorsuch said that’s not before the court. Heh, but it will be, and soon.
What about the loss of rights and stigma from felony conviction after release? What about sex offender registration? Why in hell should I have to endure that if I was convicted in an unconstitutional trial or if I entered a plea of guilty or no contest under threat of such a trial, when it turns out this state law was unconstitutional the whole time and I wasn’t told so? Good questions!
Those who are not in prison have fewer remedies than those who are if they are beyond direct appeal. Post-conviction relief (habeas corpus or “PCR”) is available only to the incarcerated. Therefore, it is even less clear if, when, and what kind of relief this group may get after Ramos. The common law writ of error coram nobis does not limit to the incarcerated the relief it may provide for late-discovered fundamental errors. Most U.S. states have abolished or replaced this remedy; Louisiana never had it. But Oregon approved it under limited circumstances in Reeves v. Nooth (Oregon Court of Appeals, 2018)(applicant was incarcerated).
Probably the vast majority of people convicted of serious felonies in Oregon and Louisiana, including those required to register, entered plea agreements and thus had no trials at all, much less non-unanimous verdicts. Those tryable by jury who accepted conviction by plea should have been “Boykinized” in open court on the record: the judge establishes that the defendant understands each right, including trial by jury, and that he knowingly, intelligently, and voluntarily waives them. But in Oregon and Louisiana, innumerable defendants have entered guilty or no contest pleas to get lower sentences and precisely because they feared non-unanimous verdicts. While it’s true they said they understood the right to trial by jury and waived it, it’s also certainly true that they were never advised before changing their pleas that the state’s notion of a “jury trial” for the offense was always federally unconstitutional.
As for those no longer on direct appeal nor even incarcerated, but required to register, a Strickland v. Washington (1984) ineffective assistance of counsel claim may yet emerge. Registration is increasingly recognized as a grave collateral consequence of conviction, despite states pretending registration is “only a civil keeping track, not a punishment at all.” How could a registrant possibly get reversal of a guilty plea? Ask the Supreme Court (someone will): they did something very similar in Padilla v. Kentucky (2010; counsel’s failure to advise of immigration consequences of a felony drug conviction was ineffective assistance requiring reversal of conviction by guilty plea). Deportation isn’t punishment, right? The right to assistance of counsel that required reversal in Padilla is in the Sixth Amendment. Hmm– where did the right to trial by jury in Ramos come from? Oh yeah– same place!
Whether the Supreme Court will enforce re-visitation of such pleas remains to be seen as they decide where to draw the line on Ramos effects. In the atmosphere of uncertainty while that is sorted out, some prosecutors might join in motions to set aside particular convictions to enter new, more favorable plea deals (we saw some of this between the Miller and Montgomery decisions on underage lifers), or to have a fair and proper jury trial. A few attorneys started preserving the issue seen in Ramos as early as 2004. Over ten years ago I began advising clients about it and preserving it in every case I tried. March 18, 2019, might be the last day that any criminal lawyer could be considered effective despite failing to advise about this issue. On that day, the Supreme Court agreed to hear Mr. Ramos’ case.
E. King Alexander, Jr. is Senior Co-Chair of the Amicus Committee of the Louisiana Association of Criminal Defense Lawyers. Admitted in Louisiana, California, Texas, and eight federal courts, he serves as trial counsel for indigent people indicted for life-without-parole offenses in Louisiana’s Fourteenth Judicial District.