Evangelisto Ramos v. Louisiana, USSC No. 18-5924, certiorari granted 3/18/19, Reversed 4/20/20
Whether the Fourteenth Amendment fully incorporates the Sixth Amendment
guarantee of a unanimous verdict?
Decision below: State v. Ramos, 231 So.3d 44 (La. App. 2017)
Scotusblog page (including links to briefs and commentary)
Close on the heels of its decision incorporating the Eighth Amendment’s Excessive Fine Clause against the states in Timbs v. Indiana, the Supreme Court will now revisit another incorporation question, this one involving the Sixth Amendment right to a jury trial.
Ramos was convicted by a non-unanimous jury: 10 of 12 jurors voted to convict. That was good enough under Louisiana law, which allows non-unanimous jury verdicts in non-capital felony cases. One other state—Oregon—also authorizes non-unanimous juries.
While the Sixth Amendment right to a jury trial requires unanimous juries in federal cases, that right has only been partially applied to (or incorporated against) the states under the Fourteenth Amendment. Specifically, the Supreme Court has held the Constitution requires the states to provide jury trial, but it doesn’t require jury unanimity in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972). As Timbs noted, this partial incorporation of the Sixth Amendment is an “exception to th[e] general rule” that “was the result of an unusual division among the Justices” and it “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” (Slip op. at 3 n.1, quoting McDonald v. Chicago, 561 U.S. 742, 766 n.14 (2010)). Looks like the Apodaca/Johnson exception might be coming to its end. We’ll find out for sure next Term.
The decision in this case will not impact Wisconsin practice. Our courts have long been assumed that the state constitution guarantees the right to a unanimous jury. See, e.g., Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979), citing Vogel v. State, 138 Wis. 315, 332-33, 119 N.W. 190 (1909), and Boldt v. State, 72 Wis. 7, 14-16, 38 N.W. 177 (1888).
Keep an eye on this case because it could significantly affect Wisconsin practice, especially if you are trying to preserve federal habeas review. Violation of unanimity (eg jury instructions, verdicts, duplicity, multiplicity, St v. Marcum grounds) arise frequently with Wisconsin cases. Heretofore these challenges had to be made under state law with a nod to federal due process rights. If 6th Amendment unanimity is applied to the states this will open new federal grounds in Wisconsin cases, and strengthen arguments with a large body of federal caselaw on unanimity.