The U.S. Supreme Court ruled on Monday that juries across the nation must be unanimous to convict or acquit a criminal defendant, outlawing the split verdicts that had persisted in Louisiana since openly racist lawmakers enshrined them in the state Constitution during the Jim Crow era.
In a 6-3 decision that crossed ideological lines, the high court ruled that the Sixth Amendment’s right to a jury trial implicitly requires a unanimous verdict, and that the previously acknowledged need for jury consensus in federal courtrooms applies equally to state courts through the 14th Amendment.
The decision will mean a new trial for Evangelisto Ramos of New Orleans, who was serving a life prison sentence after being convicted of murder in a 10-2 decision. It will immediately affect scores of other recent criminal convictions and hundreds of pending felony prosecutions in Louisiana and Oregon, the only two states to adopt nonunanimous jury verdicts — in 1898 and 1934, respectively.
Louisianans voted in 2018 to do away with the practice, overwhelmingly passing an amendment to the state constitution requiring unanimous verdicts in future cases.
But the ruling, anticipated by many legal scholars, will still have a major impact here: It appears to hand new trials to as many as 100 Louisiana inmates who, like Ramos, were convicted by split juries and have not exhausted their appeals, according to defense advocates. It will mean all verdicts going forward must be unanimous; the 2019 amendment applied only to trials involving crimes that occurred after Jan. 1, 2019.
The decision will have no immediate impact on a much larger group of inmates that has run out of appeal options.
"We are heartened that the Court has held, once and for all, that the promise of the Sixth Amendment fully applies in Louisiana, rejecting any concept of second-class justice," said Ben Cohen, an attorney at the New Orleans-based Promise of Justice Initiative who brought the case on Ramos' behalf.
At the center of the high court debate were the implications of overturning a nearly 50-year-old decision that Louisiana and Oregon took as vindication of their peculiar system for dispensing justice in felony cases, and how such a reversal could color future court decisions on unrelated issues, such as abortion.
The justices agreed, however, that the high court's 1972 decision in Apodaca v. Oregon, which upheld split-verdict laws in Louisiana and Oregon, was, in Justice Brett Kavanaugh's words, "egregiously wrong."
Justice Neil Gorsuch, a nominee of President Trump along with Kavanaugh, called it "gravely mistaken" in the majority opinion.
"Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment’s adoption — whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward — the answer is unmistakable," Gorsuch wrote. "A jury must reach a unanimous verdict in order to convict.
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“The fact that Louisiana and Oregon may need to retry defendants convicted of felonies by nonunanimous verdicts whose cases are still pending on direct appeal will surely impose a cost, but new rules of criminal procedure usually do.”
Gorsuch wrote that the court took “a strange turn” in its 1972 decision on split verdicts, when Justice Lewis Powell “adopted a position that was neither here nor there” while breaking a tie on the court.
Since then, “both Louisiana and Oregon chose to continue allowing nonunanimous verdicts. But their practices have always stood on shaky ground.” He described the Apodaca ruling as “an outlier on the day it was decided, one that’s become lonelier with time.”
Much of the debate among the justices centered on the weight, if any, to give the court’s 1972 decision in Apodaca and a companion case, Johnson v. Louisiana.
Gorsuch and two other justices — Ruth Bader Ginsburg and Stephen Breyer — concluded that the decision, which endorsed split verdicts by as few as 9 of 12 jurors in state courts, wasn’t worthy of precedent at all.
Gorsuch, Kavanaugh and Justice Sonia Sotomayor also stressed the racist origins of the split-verdict laws in both Louisiana and Oregon as factors that “uniquely matter here,” as Sotomayor wrote.
“Today, Louisiana’s and Oregon’s laws are fully — and rightly — relegated to the dustbin of history,” she wrote, adding that “overruling precedent here is not only warranted, but compelled.”
Kavanaugh noted evidence that the racism that spawned the split verdict law 120 years ago in Louisiana remains embedded within it today.
“After all, that was the whole point of adopting the non-unanimous jury requirement in the first place. And the math has not changed,” Kavanaugh wrote. “Then and now, non-unanimous juries can silence the voices and negate the votes of black jurors, especially in cases with black defendants or black victims, and only one or two black jurors.”
Those voting to require unanimous verdicts included three members of the court's liberal wing — Breyer, Ginsburg and Sotomayor — and three conservatives — Gorsuch, Kavanaugh and Justice Clarence Thomas. The losing faction included two conservatives, Chief Justice John Roberts and Justice Samuel Alito, and one liberal, Justice Elena Kagan.
About 200 convictions in Oregon also are set to be overturned based on the decision, said Aliza Kaplan, a Lewis & Clark Law School professor who has advocated for junking the split-verdict law in that state.
“I was surprised at how much the histories of these laws seemed to matter to the court,” Kaplan said. “From the beginning, this was a legal issue. However, to not consider all of the histories in these laws always seemed inappropriate. I’m glad they addressed it in detail.”
That history didn't matter to the whole court, however.
In his dissent, Alito defended the two states’ reliance on the split-verdict law. Alito argued that the court was “lowering the bar” for overturning precedent.
“Consider what it would mean if Apodaca was never a precedent. It would mean that the entire legal profession was fooled for the past 48 years,” Alito wrote. “The idea that Apodaca was a phantom precedent defies belief.”
Alito said he would stick with Apodaca regardless of its “correctness.”
Louisiana's 2018 vote to change its practice, Alito argued, made the case for overturning precedent even less compelling.
“To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts — even though this Court found such verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them,” Alito wrote.
Former state Sen. J.P. Morrell, a New Orleans Democrat who championed the 2018 constitutional amendment, hailed Monday's ruling as "a momentous day in our nation's history." Morrell said in a statement that the vote to abolish split juries in the state "lent weight to the argument against the horrendous, racist practice of split jury verdicts!"
As expected, the Supreme Court left for the future the question of retroactivity, and whether this was the kind of “watershed" decision that ultimately warrants fresh trials for anyone ever convicted by a split jury. That means convictions will remain intact, at least for now, for what advocates estimate are about 1,700 inmates in Louisiana who were convicted by less-than-unanimous juries and have exhausted their appeals.
Most are life prisoners with no shot at parole. A flurry of new legal challenges by those inmates is expected to follow Monday's ruling.
However it plays out, Monday's ruling means Louisiana and Oregon have conducted their last criminal jury trials under split-verdict laws.
Mercedes Montagnes, executive director of the Promise of Justice Initiative, said the high court "reckoned with the largest standing monument to the Confederacy" in its ruling.
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“This decision is a victory for the constitutional rights of all Americans, and it also solidifies what Louisiana citizens knew when they went to the polls to fix our broken justice system two years ago,” said Daniel Erspamer, CEO of the Pelican Institute for Public Policy, a libertarian criminal justice reform group.
Reform-minded lawmakers in Oregon were moving last year toward a ballot measure similar to Louisiana's, seeking to eliminate split juries in that state. They held off when the Supreme Court decided early last year to take up the case of Ramos, an oil-supply boat worker charged in the killing of 43-year-old Trenice Fedison in New Orleans.
Fedison's body was found stuffed inside a garbage can in the Central City neighborhood. Ten of 12 jurors voted to convict Ramos of second-degree murder, good enough under Louisiana law.
Louisiana was the first state to break from hundreds of years of Anglo-Saxon legal tradition when it scrapped jury unanimity and endorsed verdicts reached by as few as 9 of 12 jurors. The change came at an openly racist constitutional convention in 1898 that was aimed at disenfranchising black people.
Oregon followed suit 36 years later, the result of a populist revolt after a single juror refused to convict of murder a Jewish man accused in the gangland killing of a Protestant.
The law endured in both states, thanks to the unusual split decision by the high court in 1972. In roundabout fashion, the court found that unanimity was an indispensable feature of federal trials, but that nothing said states couldn't create their own jury rules. Yet only one justice, Powell, actually held that view.
A year later in Louisiana, delegates to the 1973 state convention raised the bar a bit; now 10 jurors, not 9, were required for a valid verdict on serious felony charges. The debate featured none of the rhetoric of white supremacy that spewed from the 1898 convention. Defenders of the law have long argued that the 1973 revision cleansed it of any lingering racist taint.
But the disparate impact on black defendants — and black jurors — that those late-19th century delegates set in motion has endured in district courtrooms across the state, according to an analysis of six years of trial records by The Advocate.
The newspaper’s research, published in 2018, found that black defendants were 30% more likely than white defendants to be convicted by a split jury in Louisiana. And in parishes where records were available, the newspaper found, the split-verdict law often leaves the particular voices of black jurors — who tend to dissent far more than white ones — silenced.
But that data played only a backup role in the argument that Stanford law professor Jeffrey Fisher laid out to the high court in October on Ramos' behalf.
Over decades of court rulings, split verdicts had become a nagging footnote as, right by right, the court has erased almost all distinction between how the Bill of Rights applies to the federal government versus the states — a process of “incorporation” of rights through the 14th Amendment.
High court rulings incorporating federal rights in other contexts — local gun control and excessive fines, for instance — left Louisiana Solicitor General Liz Murrill grasping to defend Louisiana’s split-verdict law before the high court.
Murrill, an appointee of Attorney General Jeff Landry, was left to argue that the Sixth Amendment doesn’t specify that juries must be unanimous because the Founding Fathers could never agree on it. Therefore, she argued, federal courts could theoretically move to split verdicts as well.
None of the justices were persuaded by that argument. The debate was over "stare decisis," the legal principle of holding to precedent. And to the six justices in the majority, it wasn't enough.
"Even if we accepted the premise that Apodaca established a precedent, no one on the Court today is prepared to say it was rightly decided," Gorsuch wrote, "and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true."
