The U.S. Supreme Court said Monday it will reconsider whether felony defendants in state court can be convicted by divided juries, a move that has the potential to rewrite decades of precedent and affect an untold number of cases in the two states that have allowed it: Louisiana and Oregon.
The decision adding a Louisiana case to its hearing docket marks an about-face for the high court, which had turned away some two dozen similar petitions challenging the law's constitutionality over the past decade. And it comes just four months after a bipartisan groundswell stirred Louisiana voters to do away with the state’s Jim Crow-era jury law by a nearly 2-1 margin.
The justices will hear arguments from lawyers for Evangelisto Ramos, an offshore worker convicted of second-degree murder in the 2014 stabbing of a woman in New Orleans' Central City. When Ramos was tried two years later, only 10 of 12 jurors voted to convict him, but in Louisiana that was enough for a judge to hand him an automatic life sentence.
The court will likely hear Ramos’ case in October or November and issue a ruling next year, said his attorney, Ben Cohen of the Promise of Justice Initiative in New Orleans.
Eugene Volokh, a constitutional law expert and professor of law at UCLA, said he expects the court to rule that unanimous verdicts are required. “The writing is on the wall,” he said, saying he doesn’t see why the court would have agreed to take up the case otherwise.
Volokh suspects the Supreme Court’s new interest in the matter owes to the court’s new members, justices Neil Gorsuch and Brett Kavanaugh. He doubts Louisiana’s recent vote was a factor, saying that if anything it might have made the court see the split-jury question as less urgent: “You can imagine the court saying, ‘This is dying out on its own.’”
Before November’s vote, Louisiana’s law had survived repeated constitutional challenges since its birth 120 years ago at a state convention infused with the rhetoric of white supremacy.
The vote left only Oregon with a similar rule, put in place in 1934. But Ramos and an uncounted number of other defendants in Louisiana were convicted under the old system, which did allow for split verdicts, and which remains in place for trials of crimes committed before Jan. 1.
Ramos' attorneys argue that the U.S. Constitution, which has been held to require unanimous jury verdicts in federal trials, should be interpreted to extend the same safeguard in state courts. Further, they add that the state law allowing a split jury vote to convict “was adopted as part of a strategy by the Louisiana Constitutional Convention of 1898 to establish white supremacy.”
The Supreme Court has considered the question of split verdicts once before, in 1972. That year, in an unusual 5-4 ruling, the court opted to allow criminal jury verdicts with as few as nine of 12 jurors in agreement.
The reasoning behind the ruling in a pair of cases decided on the same day, Apodaca v. Oregon and Johnson v. Louisiana, has been heavily scrutinized -- and often criticized.
Four of the nine justices said they believed the Constitution required unanimous verdicts in all cases. Four justices, while recognizing that common law had for centuries favored unanimous verdicts, wrote that they did not see unanimity as necessary regardless of the courthouse.
The swing vote came from Justice Lewis Powell, who argued that the Constitution required unanimous verdicts in federal courts based on history, but that nothing bound the states to do the same.
In a brief opposing Ramos’ petition, Louisiana Attorney General Jeff Landry and Orleans Parish District Attorney Leon Cannizzaro said that 47-year-old precedent should stand.
They argue that overturning the Supreme Court's earlier decision would create chaos in Louisiana and Oregon’s courtrooms, potentially forcing judges to revisit thousands of convictions.
The fact that the high court had repeatedly refused to revisit the question, leaving juries to convict without consensus for nearly a half century, all the more warrants upholding the 1972 decisions, they argued.
However, Ramos’ attorneys said that the court was only being asked to consider the cases of defendants whose convictions were still going through their first round of appeals -- not the much larger universe of cases where convictions are final.
Moreover, they added, Louisiana has been “on notice” that the U.S. Constitution’s jury trial rights could be applied to the states since a 2000 ruling.
Volokh, the UCLA professor, said the court tends to avoid applying rulings retroactively in ways that could sow chaos, even though “there is a plausible argument for retroactivity.” If Louisiana were required to try thousands of old cases, Volokh said, “You can imagine the state saying, ‘You told us this was OK, and we trusted you.’”
On the issue of racial discrimination, while Louisiana and the District Attorney’s Office admitted that the 1898 convention was stocked with bigoted delegates, they said there was no clear evidence that the split jury rule was based on “racism rather than judicial efficiency.”
They also note that the split-jury rule survived the convention that produced the Louisiana Constitution of 1974, which remains in effect. That’s when the delegates, and then state voters, modified the required juror count for a valid verdict from nine to 10.
Ramos’ petition to the high court cites The Advocate’s “exhaustive non-partisan analysis” in a 2018 series on split jury verdicts, in which the newspaper sought to measure how common such verdicts are and to assess whether they have a disproportionate effect on black defendants.
The newspaper built a database of about 3,000 jury trials, including 993 convictions where the vote counts of the jury were known. In 40 percent of those cases, at least one juror dissented with the guilty verdict; such split verdicts were 30 percent more likely when the victim was black.
The newspaper also analyzed the jury selection process, creating a dataset of more than 40,000 prospective jurors called to jury duty in nine of Louisiana’s busiest courthouses. The analysis found that black people were underrepresented in those jury pools, and that their numbers were further whittled down by prosecution “strikes,” resulting in juries that were significantly less diverse than the parishes from which they are drawn.
In a more limited analysis, the newspaper found that black jurors were 2.5 times more likely than white jurors to disagree with a conviction.
As lead lawyer Ben Cohen’s brief to the Supreme Court put it, The Advocate’s reporting “merely confirms what researchers have previously suggested: that non-unanimity serves to silence minority jurors.”
The high court is likely to consider those arguments this fall. It’s nearly impossible to say how many cases could be affected by a ruling finding the law unconstitutional.
Ramos’ lawyers say the numbers would likely be modest because the court is only being asked to weigh in on defendants whose convictions are not considered final. And Volokh, the constitutional law scholar, said he'd be surprised if the court didn't limit its ruling to such cases.
But if the Supreme Court were to retroactively require unanimity to all trial convictions, however, the cases affected could number in the thousands.
There are about 33,000 inmates serving state time at the moment, but the Department of Corrections doesn’t keep track of how many of them went to trial and how many took plea deals.
If every one of those prisoners had gone to trial, and 40 percent of them were convicted by non-unanimous juries, that would mean roughly 13,000 cases up for reconsideration. However, the number is almost certainly far lower than that, as the vast majority of convicts take plea deals rather than go to trial.
That said, those serving the longest sentences – such as life without parole – are highly likely to have gone to trial, as there is usually little incentive to take a plea that calls for such a harsh sentence.
With about 4,800 such prisoners, Louisiana has easily the highest rate of inmates serving life without parole. The Advocate’s data suggest that perhaps 2,000 of those prisoners were convicted by split juries.
The erratic nature of Louisiana’s court records could add to the confusion for Louisiana, should the Supreme Court rule the law unconstitutional.
In building its database of trial verdicts, The Advocate found that there is little consistency across the state in whether juries are polled on their verdicts, how they are polled, and how those results are recorded -- meaning the record may not reflect whether a particular verdict was unanimous or split.
For instance, in some cases, jurors are orally polled on their verdict, but the court minutes simply note that the number of jurors voting guilty was sufficient for a conviction under Louisiana law -- meaning it could have been 10, 11 or 12. In other cases, judges told The Advocate that they poll juries in writing, but then destroy the polling slips once they’re counted, without noting the number in the court record.
The Supreme Court’s decision to hear the case comes five months after a state judge in Sabine Parish ruled Louisiana’s law allowing split juries unconstitutional.
In that ruling, Judge Stephen Beasley found that the law violated the 14th Amendment’s guarantee of equal protection, because the law continues to have a discriminatory impact. His order, now under appeal in a different case to the state Supreme Court, relied in part on The Advocate’s research, as well as testimony from an Advocate reporter, a law professor and two historians.
It’s not clear whether the state court will take up that matter now, or wait until the U.S. Supreme Court has ruled.