Ramos v. Louisiana: new and fairer trials for hundreds convicted in Oregon and Louisiana

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    • #71521 Reply
      King Alexander
      King Alexander

      By E. King Alexander, Jr.  . . . Amidst intense political concern about the fate of Roe v. Wade (1973) particularly, and that of stare decisis (bindin
      [See the full post at: Ramos v. Louisiana: new and fairer trials for hundreds convicted in Oregon and Louisiana]

    • #71523 Reply
      Avatar
      Tim in WI

      Louisiana law is interesting because historically the people’s reference was Napoliatic. Sister Helen Prejean wrote about it in “Dead Man Walking.” Anyway you slice it LA suffered great individual state sovereign loss from federalist impingement against it. The states use of Capital punishment is harsh and well documented, yet too often divergent from the opinion of fed courts. Fact is federal courts cannot compel fair state trials in the instant case. Instant cases by definition must first be proceeded by wrongful conviction. This implies the foundational thoughts surrounding the plea system is askew. Good trees do not false fruit.

      I raised Padilla V KY, in pretrial during my last year’s FTR charge since dismissed by prosecutors motion. I also applied the 13th claim that SOR is plain indenture to state like P&P maintenance. WI opted DOC to administer.
      Judge said no, cited Ramesch v State , oddly ADA said he’d file to dismissed based on lack of evidence., Ex no written judgement but in same jurisdiction, (usually the proper paperwork in clerks file would be there; But ex post laws render in not in the ” official record”) But that didn’t stop the DOC from doing their job. You must take personal affront and demand trial to win on failure to provide \ register.

      The end around Padilla use here does not repair the recognized loss of good reputation via world wide broadcasts – now used by feds by Angel watch btw.
      Life terms ARE worth mention at the time of “fair” trial and not ” trivial and collateral ” as Mr. Roberts would have you believe. There is also nothing passive about electronic registration.

      One aspect overlooked is the uses are being recognized as dangerous by courts. Continuous electronic surveillance via SBM like GPS bracelets utilize database & infrastructure. Grady v. NC. Speech in Packingham.

    • #71569 Reply
      Avatar
      E @ Tim

      Tim, how would you go about fighting Wisconsin’s law that you must register with them for life even if you move out of the state? Any thoughts based on your success with the FTR? Dismissal on insufficient evidence is great but doesn’t help us with case law around the actual FTR charge. Would appreciate your thoughts.

    • #71570 Reply
      Avatar
      JD

      One count of lewd/lascivious in January 1997 in Florida.

      Both before being sentenced and on actual day of being sentenced, Attorney told my wife and I that my offense did NOT qualify for sex offender registration and public & community notification, and that I would not be on the state website, and that most I would probably get was 2 years probation.

      Sentenced in April 1998. Nothing at all was said or even mentioned about sex offender registration at my sentencing: not by my attorney, not by the prosecutor, not by the judge. Based on attorneys advice, accepted plea deal and plead guilty. And, at that time, there was no so thing as sex offender conditions of probation; my conditions, as indicated on the papers I signed, was regular conditions of probation. I did not sign off on, agree or consent to any other conditions, including registration.

      Was sentenced to 2 years house arrest followed by 13 years probation. For first 30 days, reported to probation and nothing was ever said about sex offender registration and public notification.

      AFTER the 30 days to appeal my sentence passed, and upon reporting to probation thereafter, I was informed that my photo would be taken and my information posted on the state sex offender website. I was shocked and immediately called my attorney when I got home. He said he did not know they would do that, re-stating that I did not qualify for registration, and would have to take legal action, which he never did. He dropped the ball and left me hanging. I knew absolutely nothing about any other legal remedies (habeas corpus, etc.) and neither did my attorney advise me of any. He later admitted over the telephone that he misrepresented me in court but that I would have to accept that I would be on the website for at least 25 years. The rest is history. The hellish nightmare that my family and I have been subjected to is too long to detail here.

    • #71575 Reply
      Avatar
      TM

      Will this ruling be applied to the military as well? I was convicted in 2015 by a panel of six non-unanimous jury members. You only need 2/3rds of the panel to convict in the military. Only problem is the jury’s decision is anonymous. Only reason I know that the decision was non-unanimous is my attorney polled some of the members afterwards and found one that felt I was not guilty. Any thoughts on how I could get my case over turned? I still have the list of panel members from my Record of Trial. My thought was to get an affidavit from that member, would that be enough?

    • #71585 Reply
      King Alexander
      King Alexander

      The narrow holding of Ramos v. Louisiana, meaning the fact-set that the decision guarantees relief (if handled timely and properly), is that a non-unanimous verdict in a state or civilian federal court is structural error requiring reversal if the case remains on direct appeal, including non-expiration of the delay for applying to the U.S. Supreme Court for a writ of certiorari. (TM’s question about a military tribunal would have to go to someone with that particular expertise.) To be clearly entitled to relief under Ramos itself, i.e. without a future, more-expansive interpretation in a case with different facts, an applicant must be able to prove that his or her verdict of conviction was non-unanimous. Proof would preferably be by the trial record itself (transcript of polling of the jury or a court minute entry reflecting the split vote). My work is state trial-level for many years except for appearances in the U.S. Supreme Court on LACDL amicus briefs, but one of my collaborators is the brilliant director of a death penalty defense nonprofit, who has major U.S. Supreme Court experience and many successes there. He opines that if the trial record is opaque or unclear about whether or not the conviction verdict was unanimous, and the case is not yet final on direct appeal, appellate counsel who has some proper evidence (e.g., juror interviews or affidavits) should move the appellate court for remand to supplement the record. If the appellate court denies that opportunity, then the post-conviction relief route should be available to take advantage of Ramos because it is a constitutional rule applicable to the case that was not yet final on direct appeal when Ramos was decided, so such a PCR applicant cannot be excluded for not having raised Ramos on direct appeal because the decision came after filing of the appeal. “On direct appeal” includes the time within which one can timely file an application for writ of certiorari to the U.S. Supreme Court after final appellate disposition in the state court system. For cases not yet final on direct appeal when Ramos was decided, lack of contemporaneous objection to the non-unanimous jury instruction should _not_ prevent a defendant convicted non-unanimously from getting Ramos relief. LACDL is soon to have a video seminar given by well-qualified appellate and PCR practitioners who will cover all the different scenarios.

    • #71589 Reply
      King Alexander
      King Alexander

      On the subject of retroactivity, Michael C. Dorf, the Robert S. Stevens Professor of Law at Cornell University, published on Justia on April 23, 2020 a good analysis titled “Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement.”

    • #71594 Reply
      Avatar
      TS

      @TM

      Title I v Title III court systems are in place here, i.e. civilian v military (not federal courts though federal via military). While it would be nice to have it apply to UCMJ and MCM for non-capital cases, where capital cases require unanimous verdicts, it would take a challenge of the current law (effective 2019) which made 75% of the panel members required to vote guilty for it to stick. There is a long time thought that all UCMJ and MCM court actions need to be unanimous.

      You could get an affidavit from the lone panel member who felt you were not guilty and what substantiates their thinking, but you would need to consider MRE 606 which stays panel members are not supposed to discuss their deliberations and voting post-considerations. This could preclude it from even being considered in future case considerations for you; however, it is still good to have on hand with your paperwork.

    • #71602 Reply
      Avatar
      TM

      Thank you for the inputs. My appellate review was completed in early Sept 2017, so not sure if I am still in the window of opportunity to appeal to the Supreme Court. My original Court Martial attorney is aware and my appeal’s attorney is aware. They are looking into the matter. Never really understood why service members have their own (kangaroo) court system. You would think they would mirror their system from the federal court system, but then they just won’t get enough convictions. If I do submit to the Supreme Court I will keep everyone posted. Thank you again for your in-depth response.

    • #71616 Reply
      Avatar
      TS

      @TM

      Good order and discipline is the reason they will use for their own system in administering justice as detailed in the long history of the US military justice system back to Geo. Washington.

    • #71620 Reply
      King Alexander
      King Alexander

      Last week the New York Times and the Washington Post both ran opinion pieces (behind paywalls) on Ramos v. Louisiana, predictably focusing on reading the tea leaves on where the nine justices stand on stare decisis, and what that portends for other precedents. Both writers focus on Justice Kavanaugh’s separate concurring opinion. The articles are: “A precedent overturned reveals a Supreme Court in crisis,” Linda Greenhouse (NYT 04/23/20, by far the longer of the two), and “Why a case about jury verdicts could spell trouble for Roe v. Wade,” Ruth Marcus (WaPo 04/24/20). This line from Marcus sums up the thrust of both pieces: “If the majority’s approach is not just a way to dispose of this one case, the decision makes an important turn.” It’s unclear whether by “this one case” she meant Ramos’s or the wrongly-decided Apodaca v. Oregon, but I think probably the latter. They could have declined to hear Ramos’ case*, whereas giving him relief necessarily meant putting an end to Oregon and Louisiana courts being able to rely on Apodaca as precedent.

      *Footnote 10 of the Ramos dissent lists nine cases in which the Supreme Court declined to address the same issue. The second- and third-listed are cases that I tried. Sims v. Louisiana was taken up by the same team who succeeded in Ramos, led by Ben Cohen at the Promise of Justice Initiative in New Orleans. Mr. Sims was convicted 10-2 of the life-without-parole charge of First Degree Rape, and 12-0 of Sexual Battery for another accuser (I have long called such counts “the ‘me too’ claim,” before this phrase was popularized). Baumberger v. Louisiana was taken up by Jane Hogan of Hogan Attorneys in Hammond, Louisiana. Mr. Baumberger, whose offense date was in late 2010, was convicted of life-without-parole Second Degree Murder after turning down a Manslaughter offer that should have resulted in his parole before now. A unanimous verdict rule for his trial would likely have forced the jury verdict down to Manslaughter, which carries a sentencing range in Louisiana of 0 – 40 years subject to “good time” and parole eligibility. He, at least, still has an open post-conviction case.

    • #71623 Reply
      King Alexander
      King Alexander

      In a list of summary dispositions released today, the Supreme Court “GVR’ed” (granted, vacated, and remanded) twelve other cases on Ramos grounds, eleven from Louisiana and one from Oregon. In five of the ones from Louisiana, Justice Thomas indicated he would have denied certiorari, two because he considered the issue not preserved, the other three without comment. Four justices are necessary for a grant of certiorari. Six justices including Thomas were in the Ramos majority. None of the three Ramos dissenters voted against any of these GVRs. The head-count indicates that Thomas could stand alone in taking a strict position on preservation of the issue.

    • #71816 Reply
      Avatar
      Tim in WI

      @E,
      Ramesch was the case deciding WI out of state registrants must still register even tho they reside in another state. Florida was the state being considered.

      I would think a better option would be to take issue of the jurisdictional overreach. Florida ( or any other state) must take sovereignty over the day to day of citizens. If it were me, I would insist the new home state protect you from WI state agents. (Kinda like Dred Scott v Stanford ) This is where federalism fails individual liberty of persons not serving [lawful commitment] sentence in convicting state congresses in favor of State Authority The District judge that ruled in favor of all aspects ( save the annual fee) of Wisconsin’s cross jurisdictional registration actions, did so IMO, based on the approval
      of registration as a non custodial civil regulatory regime.

      The Ramesch judge held the yearly fee as a tangible loss of property, and therefore constitutes a loss substantive enough to trigger due process protection (cumulatively), which naturally ( by ex post law enforcement) is “literally paying again” which harkens retribution, no matter if it’s a “fee” or a “tax.” The 2nd Circuit appeals court disagreed holding the annual fee for registration for registrants residing out of state as “necessary to help offset the costs of providing a civil service commissioned by the U.S. congress.”

      Too many people fail to insist their state remain sovereign and protect ” the people” from federal intrusion into the day to day. Instead all 50 states cow tied themselves to the Fed electronically. In opting to do so, all fifty discarded their individual sovereignty altogether. Many States are just now coming to that inevitable conclusion.

    • #71821 Reply
      Avatar
      Tim in WI

      @E,
      In support for what I thought I’d post a link referring to Wisconsin specifically and potential challenges. Here is the cite.

      In Re: Booth (1854)
      3 Wis. 1
      Referring to the Federal Fugitive Slave Act and Wisconsin’s constitutional disposition against it, as other North states. state

      Like I’ve stated before, the electronic database ( gov use in fact) is game changer similar in social impact to the printing press. Indenture of human to machine began long before the turn of the century.

      I will now select the ” I am not a robot” box. I do so by my own choice and volition.

    • #71849 Reply
      Avatar
      Tim in WI

      @King Alexander,
      On: Justice Thomas stands alone in the strict reliance on preservation issue toward the vote upon cert. question.

      I’m wondering if your read of the published opinion in Ramos revealed other judges opinions concerning the preserved right issue? Ramos indeed demanded trial and so the record cannot contain a standardized waiver of right form, signed by 95% of defendants.

      These unanimous cases emerging from the set Ramos precedent may win or lose the grant of review based solely upon the fact. If Justice Thomas truly stands alone, it would not be the only time. I refer to his stated position in the Alaska case out of the 9th, and the registration regime and strict liability ” reqirements. ” While Thomas was certainly not alone in Connecticut D.P.S. V DOE 03, he made a point with acknowledging that civil designation depended upon the traditional deference to Congress and what registrants onus factually was. He left the door open for the evolution into punitivity.

    • #71936 Reply
      King Alexander
      King Alexander

      Yesterday, May 4, 2020, the U.S. Supreme Court granted certiorari in Edwards v. Vannoy, No. 19-5807, in which the Justices will consider retroactive effect of the unanimous jury ruling in Ramos v. Louisiana. The applicant’s attorney is Andre Belanger of Mannasseh, Gill,Knipe & Belanger in Baton Rouge. Today Andre asked our Amicus Committee of LACDL to support the application with an amicus curia brief, which we surely will. The case came up through the U.S. Fifth Circuit in New Orleans.

    • #71938 Reply
      King Alexander
      King Alexander

      @ Tim in WI: In the April 20, 2020 opinions in Ramos v. Louisiana itself, the majority by Justice Gorsuch downplayed the ideas that retroactivity was likely, and that if the ruling were retroactive it would have excessive impact on the two states involved, while in his dissenting opinion Justice Alito fretted about a “tsunami of litigation” with the overturning of Apodaca v. Oregon. In the April 27, 2020 list of summary dispositions, Justice Alito included a paragraph saying that retroactivity is not decided, and that for cases still in the state systems it will be up to the courts of those states to determine whether or not the issue had been preserved, in contrast to Justice Thomas who, although concurring in result in Ramos, took the aggressively restrictive view that the issue had not been preserved in three of the five Louisiana cases in which he dissented from the GVR (granted, vacated, remanded). The dissenters Justice Alito, Chief Justice Roberts, and Justice Kagan did not go so far as Justice Thomas. The dissenters had taken the position in Ramos of the importance of stare decisis, and now the Ramos ruling is a precedent, so consistent with their support of stare decisis they voted for all twelve of the GVRs even though they had dissented in Ramos. Justice Alito’s additional remarks were cautionary that none should assume that the courts below would find that the issues had been preserved in the respective records of those cases. Stay tuned.

    • #71988 Reply
      Avatar
      Tim in WI

      King Alexander,
      Thank you for your insight. I’ve noticed Justice Thomas has become more vocal since the court has turned to electronic conferences. I will stay tuned and look forward to reading your input on the issue.

    • #73040 Reply
      Avatar
      TS

      The impact of this decision is now being felt as you can read here in an ABA Journal news article (sans link but is searchable online) with cases in both LA and OR being overturned and returned for retrial:

      Appeals court tosses convictions in wake of Supreme Court ruling on jury verdicts
      By Amanda Robert
      May 29, 2020

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