Calvin Duncan was soaking in the sun outside the federal courthouse in New Orleans about a year ago when the subject turned to Greek mythology.
“My middle name should have been Sisyphus,” cracked Duncan, who spent 28 years in state prison, most of it as an "inmate lawyer" helping other prisoners with their legal cases.
At that point, Duncan had helped 19 Louisiana inmates file nearly identical petitions, each one asking the U.S. Supreme Court to reject the state’s law allowing divided jury verdicts as unconstitutional. And each time, the high court refused.
“The question comes up: Why does Sisyphus continue to roll that boulder up the mountain when the gods had condemned him (to have it roll back down each time)?” Duncan said. “But his attitude was, ‘Yeah, y’all have spoken, and y’all wrong. And I’m gonna keep on trying until that happens.’ ”
Then last week, the high court finally agreed to revisit split jury verdicts in a New Orleans murder case — the 23rd petition that Duncan helped engineer.
The court’s decision to accept the case of Evangelisto Ramos could mean far more than redemption for Duncan, who went free in 2011. A ruling in Ramos’ favor could affect thousands of inmates and criminal defendants in Louisiana and Oregon, the only two states to break from a centuries-old tradition of requiring jury unanimity in American courts.
Anyone recently found guilty by a split jury in those two states could see their convictions overturned. And the legal playing field would shift for hundreds and perhaps thousands of others now awaiting trial on serious felony charges.
Even if it finds split verdicts unconstitutional, as many legal scholars predict, the court is not expected to reverse the fortunes of thousands of other people in Louisiana and Oregon who were convicted by split juries but have exhausted their appeals — a process that often takes a couple of years, and sometimes longer. Legal experts say the court is likely to save that thorny question for later.
It probably wasn’t Duncan’s persistence that convinced the justices to revisit the court’s controversial 1972 decision in Apodaca v. Oregon, a ruling that observers and even the court itself have described as a legal oddball.
More likely, court watchers say, at least four justices decided the timing was right to settle a much broader question over the reach of the Bill of Rights — the first 10 amendments to the U.S. Constitution, which guarantee an array of civil liberties.
Before the 14th Amendment was passed in the wake of the Civil War, the Supreme Court viewed the Bill of Rights as applying only to the federal government, not the states — in part because this was the only way to accommodate slavery. Even in the years after slavery was abolished, the court initially viewed those rights narrowly when it came to the states.
Another New Orleans case set the stage in 1873. In a challenge to a slaughterhouse monopoly granted in the city, the court found that the 14th Amendment extended to the states only in banning them from depriving black people of equal rights.
That started to change in the 1920s, as the court began to require the states to recognize, in piecemeal fashion, the individual liberties enumerated in the Bill of Rights, a process known as incorporation.
Before 1963, for instance, defendants in state court had no guaranteed right to counsel. The right to a jury trial itself in serious criminal cases didn’t come around for state defendants until 1968, in another Louisiana case.
Now, very few federal protections remain that the court has not explicitly applied to the states as well: a prohibition against the forced accommodation of soldiers; a requirement for grand jury indictments; a right to a jury trial in civil cases, which no state contests; and a right to unanimous criminal juries that is not spelled out in the Sixth Amendment.
Legal scholars see the court’s 1972 split decision in Apodaca v. Oregon as an anomaly. Four of the justices thought the Constitution required unanimous juries in both state and federal trials. Four others said it was optional in both.
Justice Lewis Powell Jr. broke the tie, holding that federal juries must return unanimous decisions, but that the states were free to adopt different rules. The decision meant that states could allow as few as nine of 12 jurors to agree to convict or acquit a defendant in felony trials. (A year later, Louisiana raised the number of jurors required to reach a valid verdict from nine to 10.)
The Supreme Court itself took note of the peculiar outcome of the Apodaca case in a 2010 opinion that incorporated the Second Amendment in a case involving local gun restrictions in Chicago.
In that case, Justice Samuel Alito described the Apodaca decision as “one exception” that “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.”
That sentiment seems to extend to both ends of the court’s ideological spectrum. Justice Ruth Bader Ginsberg, a “notorious” liberal justice, echoed the comments of the conservative Alito last month while finding that the Eighth Amendment’s ban on “excessive fines” applies equally to the states.
Justice Neil Gorsuch, one of the court’s newest members, may have telegraphed the court’s interest in revisiting the Apodaca decision as he questioned an Indiana state attorney last year in the excessive fines case.
“And here we are in 2018, still litigating incorporation of the Bill of Rights,” Gorsuch said incredulously. “Really?”
It’s a different question than the one a Sabine Parish judge answered last year when he found Louisiana’s split-verdict law to be unconstitutional.
In that ruling, which for now appears to affect only cases in that parish, 11th District Judge Stephen Beasley cited the split-verdict law’s racist origins in 1898, as well as extensive data gathered by The Advocate that revealed the law continues to have a lopsided impact on black defendants and black jurors.
Based on those findings, Beasley found that the law violates the "equal protection clause" of the 14th Amendment.
Ramos is taking a different approach, also attacking the split-verdict law as a violation of the Sixth Amendment, but through the "due process clause" of the 14th Amendment — a popular vehicle for incorporating rights against the states.
His attorney, Ben Cohen, said the evidence that the law has a disparate racial impact is important, “because when you try to understand, should this right be fully incorporated, the fact it was done in this way, to silence the voices of African-American jurors, is relevant.”
Still, the evidence of a racial impact from the law is unlikely to play a leading role as the Supreme Court debates split verdicts, said Loyola law school professor Andrea Armstrong.
“It’s squarely an incorporation question,” she said.
Aliza Kaplan, a law professor at Lewis & Clark University in Oregon who has advocated against split verdicts, agreed.
“Even at the time of Apodaca, I don’t think anyone felt that secure in the (ruling) because it was such a strange opinion,” Kaplan said. “What we’ve seen since then is a louder move toward being very clear about incorporation.”
Kaplan suspects the court’s move in that direction — perhaps nudged along by its newest members, Gorsuch and Brett Kavanaugh — spurred the decision to take a fresh look at divided juries. But the justices may also have been persuaded by Louisiana voters’ resounding decision in November to abolish split jury verdicts, she said.
“The Supreme Court really does try to be somewhat in step with society,” she said. The Louisiana vote “sends a message that people don’t want this.”
Justice Antonin Scalia, the conservative legal lion who died in 2016, had some strong words in support of jury unanimity, and his influence may be holding sway among his admirers, Kaplan said.
“I always thought if Scalia had this, he would do the right thing. And I think that’s what we see with a couple of the newer justices. They’re more in that mold with regard to criminal justice issues,” she said.
No date for the high court to hear the issue has been set. Arguing against Ramos will be Attorney General Jeff Landry’s office, which as the state’s lawyer opposed Ramos’ petition. Landry’s office has argued that the Sixth Amendment doesn’t specify the right to a unanimous jury for a reason: It was debated by the amendment's drafters and rejected.
Landry’s lawyers also note that, through the Apodaca decision, the Supreme Court has explicitly allowed Louisiana and Oregon to rely on split jury verdicts for nearly a half century. Overruling it now would cause undue havoc, Landry’s office argues, particularly if the court were eventually to declare its decision retroactive.
Landry’s office claimed in its response to Ramos’ petition that the vote in November “considerably lessens the importance” of a Supreme Court review.
“In a few years, Louisiana will no longer have trials with non-unanimous juries,” attorneys for Landry’s office and Orleans Parish District Attorney Leon Cannizzaro’s office wrote. “Given how many times over the past 46 years this court has refused to review Louisiana’s non-unanimous jury system, this moment would be an odd one in which to choose to intervene.”
But that’s exactly what the justices are doing, and in the view of several legal scholars, it’s unlikely they would have agreed to hear Ramos’ case if they weren’t inclined to do away with split verdicts.
At least four of the nine justices had to agree on Monday’s decision to hear the case. It will take five justices for a deciding opinion.
Still, Duncan, who was released from prison in a deal with prosecutors over a troubled murder conviction, isn’t quite ready to write a new ending to his favorite Greek myth.
“It’s up there,” Duncan said of his metaphorical boulder. “Which way it comes back down we don’t know. But we got it up there.”