Constitutionally required in, cases for federal and state courts. Evangelista ramos was convicted of seconddegree murder when only 10 of 12 jurors found him guilty. At that point under louisiana law unanimous juries were not required but since the louisiana has passed a law requiring unanimous juries but does not apply retroactively to his case. He was sentenced to life in prison without parole. The Louisiana Supreme Court denied him a review. This is about an hour. In case 185924, ramos versus louisiana. Mister fisher. Mister chief justice, may it please the court. This court reaffirmed the wellsettled rule that Incorporated Provisions of the bill of rights applied the same way to the state as they apply to the federal government. Taking that as a given the state does not defend Justice Powells pivotal vote. That flouted president at the time and since been relegated to nothing but isolated relic of an abandoned doctrine. The states only defense in support of the judgment below, the sixth amendment does not require unanimity at all in safe courts are in federal courts. The court has said many times of this, what the court has it is the sixth amendment right to trial by jury carries with it the essentials of commonlaw. The commonlaw authorities are uniform, explicit absolute. Unanimity is an absolute requirement. And the reason they gave for that rule is they resonate as much as they did then. We were not prepared to take away somebodys liberty and as a crosssection of the community uniformly agrees to criminal punishment is appropriate. I dont think the state disputes the historical account i gave you is central to the functioning of the jury trial. The drafting suggests that they would dispense with that, and if the historical requirement is no more unanimity than the 12 person rule. The state has over read the draft history. The court itself set in place is dealing with provisions like this and amendment, double jeopardy clause, we do not read into a deletion of language, any meaning when theres no contemporary evidence designed to change the meaning of the provision and that is all the more true here because the contextual backdrop, the fact that many states at the time had trial by jury provisions in their own constitutions and note those provisions require unanimity but some didnt. The rule was the same across those states. The thing the framers would have taken from the context of the time, doesnt matter if you have unanimity in the provision. It requires it either way. To give them to be fair even if some have unanimity and some dont and you have a draft that says unanimity i dont understand why you would take it out and argue it doesnt matter whether it was in or not why would they take it out . The best historical evidence that it got latched to a debate about that requirement, what James Madison did was take away the collaboration of trial by jury, and to respond, the pennsylvania constitution. The time of the founding require unanimity explicitly and Justice Wilson rewrote the constitution in pennsylvania to take it out and Justice Wilson was one of the leading expositors of the commonlaw notion of trial by jury you requiring unanimity and thats the last thing i wanted to say about the drafting history. One would think of the framers dispensed with 400 years of uniform practice somebody would have said something. You have Justice Wilson right after the constitutions founding document after unanimity is indispensable, justice dorian commentaries using the same word, indispensable. Any number of other criminal law treatises at the time gathered in our brief, all reinforcing this notion. You are asking us to overrule, we have to think about last term the majority was lectured pretty sternly in a couple dissents about the importance about the impropriety of overruling established rules. Thinking about the dissent in Franchise Tax board. Very important consideration, reliance, it would be helpful to me if you could compare the reliance at issue here, louisiana, oregon, tried thousands of cases, reliance the court said this was okay. Can you compare the reliance with the reliance on Franchise Tax board and nick . I would like to make a Legal Comparison and factual comparison. The state is claiming to rely on appetite, but they are not refunding the rule that the 14th amendment doesnt require states to have this, they are asking for a new rule that was never adopted and the court last term, in part of those disagreements, some justices said it is okay to rehabilitate an old rule. I dont want to interrupt, we are not tied in deciding this case, the decision of this court, apadaca, we could affirm it on different grounds where the status is advanced but i want you to complete let me give you three reasons as you take that as a given, shouldnt carry the day but sticking with the law three things. Justice powells vote was an isolated vote, no majority for the court and what was rejected this is so unfair but could i ask you to take that out of your analysis. For the remainder of your analysis, it is an important consideration which im not sure how to think about but if you assume this was any old 54 decision . To my second point would be the 14th amendment rule had it been adopted by a majority is derelict in the law, isolated, abandoned relic of past jurisprudence and you dont have to look further than the last term in tims. You can look at the mcdonald opinion and any number of others that say the same standards have to apply to state and the federal level. It would be an outlier that says we have an exception here. We are going to treat this amendment to friendly but we tolerate a significant degree of diversity in state criminal procedure and this could be one of those sorts of rules where we say there are times we think the state gets to decide something on its own and so it is an anomaly. This is not a kind of anomaly that should concern us much because in general criminal procedure law is loaded with anomalies. Let me respond to one thing. What i would say if you look at the courts incorporation jurisprudence thats one place the court has not accepted anomalies and the court has said this is at a low and but when it comes to state following fundamental rules of the road and the bill of rights. On that level it is a different situation. I recognize that. Pardon me . Sending supplies to the state, recognize apadaca as an exception, recognize one exception to complete incorporation. Thats right and my argument today is even though that has been an exception for several years it shouldnt go forward. It doesnt have any footing in the law. Let me turn back to Justice Alitos question because youre asking about convictions. This is another area where it does isis has less to save and normal. There is a just a different set of doctrines designed has reliance interest in their past present from the court. Unlike the ordinary case with other doctrines, you have a different set of doctrines the state can invoke to support its reliance we dont know how a decision is your favor would play out in collateral review. Even in federal court or state court but you think i can well envision seeing you up here, this is the rule you are trying to persuade us to accept, watershed rule of criminal procedure. You think that is frivolous . I dont think it is frivolous was the best thing the state will say for itself is duncan itself when the court incorporated the right to jury trial did not help to be retroactive and the court reaffirmed that precedent but the core point i am making todays in deciding whether to overrule the case, reliance in terms that are at stake but there are separate doctrines to protect those reliance interests. I dont think you should give them and to wait in this situation and i dont think the court has given those things undue weight in the past and i direct the court to the mcdonald decision where a catalog of all the times over the years in the incorporation jurisprudence that over the past cases and i dont think any area of law with packing my library decisis over the years what about the size of the jury if we accept your argument here, how or could we draw a distinction between this case and the president s on the size of the jury . Williams itself would have you do that. The question is whether the feature is an indispensable feature or does the court make it an essential feature of the right to jury trial as we preface it in this country and what the court is looking at his historical sources and the better reading of those sources, the 12 person rule was a historical precedent so that is a holding of this court that put on the other side of the ledger from the uniform commonlaw authority when it comes to unanimity and that would be the decisis effect. Williams is a problem for you. Of 6 lines need to agree to convict a little offense washington the . The key principle is not how many but the degree of aggrieved. My core proposition to you would be a 10numtwo verdict is less guaranteed to be accurate and is guaranteed to be constant with the purposes of the jury trial than a 60. You preface of that by saying it is a key part of the distinction . The very distinction. Im not sure that is self apparent. Would you play it out in game theory or something . If you ask the defendant what do you want . They have to agree across the border you want to 12 and youve got to convince it is not apparent to me which i would take. Illegal answer is a practical answer. The legal answer, unanimity requires the 6 person verdict is more consistent, the only consistent outcome with the purposes of the jury trial cause. There are effective deliberations towards an accurate decision in a crosssection of the community. What happens in louisiana and oregon is a crosssection of the community by design can be left out of and canceled out of those deliberations and it is different when it comes to the way things happen in the jury room and the Public Confidence in that verdict and i will give you a practical answer. When louisiana was considering changing its law interchange of law, something i think should be taken into account when it comes to decisis when it changed its law. The prosecutor specified he used to charge felonies instead of misdemeanors because it was easier to get in2 verdict than 60. Lets say im not persuaded by your functionalist arguments about the tension between unanimity and numbers between this case and williams. Anything else besides these functionalist arguments of great importance about unanimity and the lack of importance about numbers . What i would say to you is the sixth amendment understood through its purpose distinguished this case so that may explain what i mean. The text of the sixth amendment so theres a right to trial by jury so the key is what does that phrase mean . From history we know that phrase meant not just a jury but the trial by jury included the way the recent decision if we have a jerry who hangs or cant reach a verdict there is a mistrial so we dont have trial by jury. That is inherent in the term. What the court said in williams is there will be some features of commonlaw. Imagine the doors all had to wear a particular color jacket to the court room. There will be some incidental features of the right to jury trial that dont have to be read along with the sixth amendment. Certain things happen in commonlaw that would not be brought forward today. Maybe what you are driving it to some degree is there is an argument and there was a powerful argument in williams, the 12 person requirement shouldnt be thought of that way, some thought the 12 person requirement was an important feature but others didnt. Many other commentators thought it was a fanciful number, inherently arbitrary and doesnt mean anything. All we are getting is what is the core meaning of the phrase do you think we would have to overrule massachusetts if we overruled apodaca . That was another case in which Justice Powells unusual approach to incorporation was the deciding vote in the case about a 2tiered jury system q that is right. My position here would tell you if you revisit that, Justice Powell in that case just like in this case set up rule of law but you would have a separate 6 amendment question which the court was divided on and you consider that case on its own terms and to be perfectly candid with you i dont know what commonlaw would say about the jury system, it would be a different set of arguments. You started off and i told you to stop but i will give you an opportunity to do it again. What are we to make on this 404 reasoning of apodaca . What do you think the rule should be about decisis going through . Do you just need a controlling rule . What is the right way to think of that . I will tell you what i think is what the court has done. There are times when a single vote could be accorded the decisis affect but then you have other rulings that sit on the system and the most recent time the court dealt with a situation like that was the hughes case a couple terms ago where you had a 404 vote in the prior case and we will consider this issue fresh. They did the same thing in seminole tribes with deep divisions and the court as to what the substantive meaning, Justice Souter said i did not consider this issue fresh in the previous votes that were all over the map. What about the decisions about its affairs in the wake of the decision, does it in a 414 decision, what is that party supposed to do. We won this case but cant rely on it because we dont know because it has no decisis effect it is the years go by and nothing happens in the ordinary case. Subject to the ordinary principles of decisis, the one thing that makes this case unusual, a they did rely on the prior case, the defendant instead of asking for a different rule and that tells you something about how discredited the fifth vote is because it makes a universe of one. I havent found any other case where somebody has come to this court and said im not going to make an argument based on provision of the constitution in which the previous decision rests. Back to the math question that was alluded to. Capable of doing this math, somebody could. If there is a jury pool with a certain percentage of jurors who were inclined to acquit and is there a greater likelihood of acquittal with a 60 verdict than a 102 verdict or if the state decides to have a jury that is bigger than 12, a 151 or a 15 person jewelry, 141, 191 and when we get to the point that the chance of acquittal is in favor of nonunanimous rule would that be unconstitutional . My rule is when the state deviates from unanimity it is unconstitutional. If the state goes beyond the number of 12, the reason why is it is a different phenomenon when somebody disagrees in the jury room. I dont mean to be presumptuous, was a difference between a 90 opinion and 81 opinion. When somebody puts reasonable good faith views on the table and requires an answer that sharpens ones thinking and leads to better results. At least in a jury you really want to argue that . You were representing a criminal defendant, it was better for us. Perhaps there would be a number where it would be difficult but what i would tell you is the history and tradition of this country makes it unlikely we will see a system like that have uniformly throughout the state of feeling of 12. You talked about our math problem and it is helpful to remind the court of the decision last term and flowers talking about the math of perimeter rechallenge and you have a similar math problem here, you have one or 2 members of a minority on a jerry, it could be a racial minority or political minority religious minority. Are we prepared to say they could be canceled out . How do we think about decisis in this case . How should we affect those . In a couple ways, talking how reasonable the reliance is, justifiable to look at what it is defending and more directly, how the reasoning should stand he didnt even consider this history. As the court has said many times like in mcdonald and rodriguez, the bill of rights against the states through the 14th amendment, history and purpose of the 14th amendment is a salient way. You want to make that argument . You made a big deal of it in your brief. I thought you would abandon it today but if another state were to enact the same statute louisiana has tomorrow and did it for the legitimate policy reasons that led such entities out of the american bar associations and American Law Institute and reputable scholars and framers with the constitution of puerto rico in people who made the rule in the United Kingdom all of which allowed it was enacted for that is in but the statute is not constitutional and because of the origin you attribute to them. Now, justice alito. Let me be clear with the court. We think that purpose could inform other court decisionmaking and if you are looking at decisis it could inform the 14th amendment rule but we dont think it is essential to our sixth amendment argument and if the state followed the recommendation, i would be making all the other same arguments im making today but the thing i would leave you with before i sit down for rebuttal is it is telling that no state has ever done that. The only states that ever deviated did so under circumstances where the crosssection of the community the jury trial brings into the group and changed and part of the design was to leave part of that crosssection out of deliberation. You mentioned earlier in your argument where the court has said a decision is entitled to less decisis effect because the parties have come into court and tried to improve reasoning or so the court has said of the earlier decision. As i understood what you were saying you said this goes beyond that. Could you explain why . Is your argument the same thing . It is a step further. If you believe parties are to be entitled when there are many years between a decision and a new one to defend the old decision with the rhythms and precedent and ideas that intervened, to take a case like Citizens United perhaps the government could have come in in support of that statute in that case. We have something entirely different. The state is not making a 14th amendment argument. They are asking the court to adopt a rule, the rule they are asking the court to adopt does not require unanimous verdict. Five justices in apodaca rejected that argument and the court, 14 other opinions rejected that argument. It was unsettled until apodaca. The unanimity question was not settled until apodaca the four of the justices, unanimity was that required . My apodaca and the sixth vote that set the precedent requiring unanimity. Let me Say Something about before apodaca, before apodaca the court squarely held an arms race