Louisiana trials. But we need to place this into perspective. This laudable ruling would only apply to cases then pending or recent will i adjudicated. It meant nothing to mr mr. Edwards, the only place that would jail you for life on a nonunanimous verdict. Why should the 6th amendment mean something less to mr. Edwards. Members of the ramos court were divided how to reconcile the fractured decision with then existing precedent. This cleared two paths that ramos, two paths to remedy those jailed by a jury scheme we know was morally wrong at its i think so tension and is unconstitutional. For some, apdoca was dead on arrival. And with these, they provided no value and ramos is an old rule dictated by precedent that simply restored the 6th amendments full measure either through the due process clause or privileges or immunities clause of the 14th amendment. For other justices. Apadoca was such a wrong decision, it needed to be overruled. And this restores fairness to jury trials in louisiana. Both paths remedy something we know to be wrong. Both paths will provide the promise of a fair trial to all louisianaens. Mr. Chief justice, im ready to entertain questions from the court. Thank you, counsel. I think your biggest hurdle is the courts decision in stefano where we held that the jury trial right itself should not be applied retroactively. What were talking about here is a subordinate right to a unanimous verdict. Lesser included right. How do you get around distefano . Theres two considerations id like to bring to the courts attention. Distefano itself was just dealing with the judges ability to make a decision and as this court noted in duncan, you cannot say whether or not necessarily that a judge rendered decision is more or less accurate than a jury rendered decision. Our case here deals with the intracacies of what goes on in the jury room. I will also note that i think the more analogous case, mr. Chief justice, is the brown decision. It, too, provided the same retro activity standard that was incorporated in distefano, which relied heavily on state interest and that applied the birch decision retroactively which prevented louisiana having nonunanimous juries. In ramos, five of us thought that apodoca was a resident being overruled and therefore, the most compelling evidence that it was a new rule. With nos five justices unreasonable . Well, when we get to the reasonableness standard of the juryists, its an objective criterion. I think we can call agree na the 6th amendment requires a unanimous jury and we can all agree that the bill of rights are fully incorporated to the states at this point. Normally the reasonable jurist standard goes handtohand. But it was such a bizarre decision it broke those two hands apart and thats why its in unique universe of one, mr. Chief justice. I think particularly given your answer on distefano that you have something of a burden of establishing that the unanimous jury is necessary to avoid, you know, an inpermissibly large risk of inaccurate eviction. What is your best empirical evidence for that . Well, i have two. First is i have amici, providing out of louisiana. 65 or so cases theyve identified half of those cases were eligible for nonunanimous verdict and from that population of half, half of those or one quarter of the 65 were actual exonerations of nonunanimous jury verdicts. I would also turn the courts attention to a law review article published in notre dame after university versus wainwrig wainwright. The crash, one of the brief authors in gideon and he reported data that florida at that time had about 8,000 people in jail and 4500 of those were jailed without a lawyer. And so, the system accounted for that. If gideons going to be our watershed rule, we can look to see just the numbers there and theyre radically different from what we have here. And so, you have a system where we look to see whether or not the system itself was fair. And a nonunanimous jury is not fair because it flies in the historical tradition of this country. Thank you, counsel. Justice thomas . Thank you, mr. Chief justice. Counsel, we agree that this is, unlike montgomery. This is a procedural rule. So, can you other than gideon, can you think of another case where we have said that a procedural rule was retroactive . Well, not sense teague. But when we go back to the brown decision. That was applying birch retroactively and it dealt with the same issue of unanimity in a jury trial. On your extra statistics or what you looked at unanimous versus nonunanimous jury. How do you respond to the arguments on the other side that the statistics and the studies are a mixed bag and it really doesnt move the dial very much one way or the other. Well, we have to look at whether or not the process seems fair. Our tradition puts together the reasonable doubt and unanimous jury together. We want people to come together as a community to be convinced beyond a reasonable doubt that this person needs to be deprived of their liberty. And so there are studies that suggested the effectiveness of deliberation is simply cut short when you dont have to have a unanimous jury and that systematically leads to the possibility of an unaccurate conviction. When we go back to those gideon numbers out of florida i just mentioned, i mean, certainly not all of the 4500 people would have been convicted, but were talking about more than half of the population in the jail at that time. It leaves room for the premise that the system can be inaccurate and unfair even though it may in many instances lead to conceivably the right decision. But i dont know how it translates right to counsel versus unanimous what has the court said, what have we said in our cases about nonunanimous juries . Well, going back to the brown decision it was required, that, you know, birch and brown both required unanimous juries. Weve had opadoca on for some time. And saw it sitting comfortably if not awkwardly with our case law. I would respectfully disagree with that. While this court has acknowledged opadoka for quite some time. I do not believe that opadocka is being what its stands for, that is a watered down bill of righ rights. Let me change a little bit and go in a different direction. Lets assume that the court finds this is retroactive. How do you get around the relitigation bar . I have two points to make, if the court were to decide retroactivity and save for another day any procedural direction, this case will go back to the Louisiana Court where well have a viability claim to make on state post conviction. Secondly first of all, i dont necessarily agree if the court would go to e2, new rules made active by the United StatesSupreme Court would allow mr. Edwards to get under a different portion. So i dont think when you read the two statutes together that they should really necessarily pose as a problem. Thank you. Justice breyer. Thank you. How many, approximate, whats your rough estimate of if you win, how many new trials in louisiana will be called for . At this point we believe the maximum population is 1600 people. I do not believe that all of those 1600 people will be able to establish that they had a nonunanimous jury. I think that a michlt am iech amici is close to a thousand, ap some of those will be eligible for parole soon or theyll benefit from a change on the habitual offender law or theyre also in jail for a very significant unanimous jury conviction. And can the louisiana system handle that . Oh, yes, sir, i mean, were only. How many trials are there in a year in louisiana . I dont know the i do not know the exact number. That varies by jurisdiction, but i believe 145,000 cases filed per year and were looking and our estimates of maybe two to three cases per prosecutor. So, the system is more than capable of accommodating this type of caseload. Thank you. Justice alito. This whole quest for watershed rules is rather strange. We keep saying that there were some in the past that were discovered, but its not clear that there are any new ones discovered, but you know, maybe, just maybe there might be a watershed rule out there that hasnt been discovered. Its i mean, it sort of remind me of something you see on some tv shows about the quest for an animal that was thought to have become extinct, like the tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of tasmanian, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by and they say aha, there still is one that exists. So, all of that is a windup to getting back to the question that Justice Thomas asked. Why should we decide whether this teague exception applies to a habeas petition brought by a state prisoner, without first deciding whether its barred by e etpa. Well, the retro activity issue, as ive said earlier, new rules made retroactive by the United StatesSupreme Court can be litigated by another portion. And secondly, i do believe theres a legitimate disagreement as to whether or not this case was actually decided on the merits statepose conviction. My look at what happened on the record below we were summarily dismissed for no legal on factual basis. So i dont believe that the merits were fully addressed. Another oddity about applying the watershed rule in this particular case is that the test for a watershed rule depends pretty heavily on harlins decision, opinion in the mackie case where he relied on exactly the rationale, palco versus connecticut rationale that the lead opinion in ramos excoriated. So would it be consistent to apply it here . Well, i do think that this is a watershed rule. There are so many parallels between this case and gideon, both recognized fundamental bedrock principles and both had to deal with case that is were inconsistent with those principles and restore the fundamental rights at issue. For gideon the right to appointed counsel and here its the unanimous jury. And isnt part of a watershed rule is whether its consistent with liberty . It is and i donten how we can say a nonunanimous. Didnt Justice Gorsuchs opinion repudiate that, ridicule that approach . Well, i read Justice Gorsuchs opinion as not finding precedental force for apoda c. Achl apodaca. And Justice Powell thought what . That wasnt fully incorporated to the state and and he thought that wasnt incorporated for what reason . He didnt believe that the 6th amendment was fully incorporated through the due process clause of the 14th amendment. All right. Thank you. Justice sotomayor . Counsel, can you explain that 1600 number . Is that all prisoners that are in jail currently, whether its a year old or not or post past their end time, is that the total prison population . When you mean by prison population, you mean are those the people that are in jail. Yes, justice sotomayor. So your statistic is to say some of them may not be able to prove that they were convicted by a nonunanimous jury. Thats correct, some of those may not be able to, your honor. Why are you guessing a thousand . Based on efforts to pull the record for 100 1600 people, they havent established that. But assuming that 1600 could prove it its on the petitioner to show that they had a nonunanimous jury and we may find that lawyers simply asked for the polling. That would be on a case by case basis. All right. Thank you, counsel. Justice kagan. Mr. Belanger, as you know, i thought that apodaca was a precedent so you would have a steep climb to get me to think that ramos is anything other than a new rule. I want to focus on the watershed inquiry. In that inquiry, youve talked a lot about accuracy and i think that somebody previously asked you about your empirical evidence and ill just give you sort of my sense that the imperrics here are sparse, as to how this unanimity requirement works, with respect to what i take to be the ordinary meaning of accuracy, which is simply a reduction in the error rate in trials. And so, too, it seems like ones tuition, is not necessarily in your corner, that it might be that unanimity rule allows more guilty people to go free than it stops innocent people from being connected. Or at least, its just not certain. So, i guess what id like to ask you is whether your well, i mean, number one, do you just contest all of everything that i just said . But number two, are you talking about accuracy in some different sense . Your first sentence to us was a verdict by a nonunanimous jury is no verdict at all. And then you talked about a verdict can be unaccurate and unfair even though it leads to the right decision. And i guess what im asking is, are you talking about and do you think in all of our cases weve been talking about, accuracy in some dinner sense than simply the reduction of errors in whatever direction . I do not think that accuracy needs to necessarily be statistics driven. Ive just provided the statistics. The and a verdict by 11 is no verdict at all is the way the framers intended the jury trial right to be. I go back to gideon which this court has recognized as the exemplar for the watershed rule. If the figures in the notre dame article were accurate were talking about three times as many more people as we have affected in louisiana and were also talking about half of that prison population where here we may be talking about 5 . I do believe it is a systemic approach to say whether or not a trial that deprives someone of his liberty with not a unanimous verdict is fair. Could i ask you about your argument, which hasnt come up so far today, but reached prominently in your briefs, about the racial aspect of this rule, picking up on Justice Gorsuchs opinion and justin cavanaughs opinion about how this rule started as the nonunanimity rule started as a racially discriminatory one. How does that play into the teague analysis and how can it as we play back to nonretroactive . Well, i think this is a case that is different than batch. A batch case is something youre looking at an individual prosecutor in an individual case. And batson requires speculation, we dont know if there would have been unanimous verdict or not with the compliant jury. Here we know, we can show that this was not a unanimous verdict. We had at least one juror and sometimes two jurors vote not guilty. And the types of cases that well be talking about moving forward, the burden will be on the petitioner to show, i actually have a nonunanimous jury and so, its measurable whereas batson was not. The origins of the nonunanimous jury is something to consider. It shows that this type of system was set up not being accurate for the purpose of not being fair. Even though the state has tried to cleanse itself it has a negative disproportionate impact today. Id like to start with your first im sympathetic to that point of view. I believe the court had for well over 100 years spoken about the unanimity requirement. Only a plurality agreed with me on that and the rough couple of joiners who thought it was the president of the court, the single justice speaking for himself was nonetheless self president that we had to buy. They took that point of view. How can we get to where you want us to go in that light . Do we account for their position . Should we discount their position even if we do discount that, what about the fact that the majority itself had different views . I would have two responses. First, i believe your opinion in my most did set to math past for the court too decide retroactively. Secondly, while i respect their viewpoint and realize that may be howis they feel today, i do t necessarily count the voteses in dissent to say explicitly weve overruled ramos. Just flesh it out for me how you see this as not a rule, not a new rule. Certainly Justice Ginsburg and Justice Breyer andce i thought thats correct for some of the other even in the majority did not. What about them, if you have asked discount the dissent . The sixth amendment has required unanimity, and then going r back to the malloy verss hogan decision weve said we do not have a watereddown bill of rights so that the two lines of precedent, sixth amendment required unanimity and at the sixth amendment is fully incorporat is fully incorporated to the states, leads to one logical conclusion, and that is that louisiana had to apply a unanimous jury scheme. Justice powells decision, a unique opinion. It is one that requires us, if we are to follow it, whats considered a fundamental bill of rights and mary it up to something that was foreclosed as at the time the opinion was given, and just dont think that is something you will ever see ever again. When we sit down people to explain that these are the two lines of president , louisiana has 102 system, do you think that would hold water, i think people would say no if they did not know about the opera doc a decision. Surely hope youre right. With respect to the watershed root, youve gotten different variations of the question but i think the guess i would put it is theirs is going to be some watershed rule and getting as example which predates teague. But ever since we havent found a single one. Is this a false promise . If it is, should we just admit its aa false promise . If it isnt a false promise, then what counts, what principle counts . Who are we kidding and which we do about it . Your honor, i couldnt frame it better. For teague to mean anything, there has to be something that counts. Thats what i think that ramos is more analogous to deeding than any of these of the cases that we decide in the past. Both the decisions restore our understanding of fundamental bedrock principles. Both of these decisions took away the case that deviated from those prior precedents. And because you will never see an opinion like opera daca again we can all rest assured this is not going to open any type of floodgates. This has tof do watershed rule f you find that it was explicitly overruled by ramos. Thank you, counsel. Justice kavanaugh. Thank you chief justice, good morning, counsel. I have been concerned that your approach would require us to chart a new path on retroactivity as Justice Thomas and Justice Alito pointed out. We have long flight of cases. You were just discussing post key cases such as wharton about the crawford rule, and many others weve declined to apply a new role retroactively on collateral. Im also though concerned about some of the prekeyed cases which are on point. The chief justicece brought up one. Youve equated ramos to gideon. I just want to give you an opportunity and applying retroactively on collateral view seems like and the asymmetry i think we have to remember he was decided by a different standard of retroactivity and the three factors in existence at that time, two of them were heavily weighted towards the states reliance interest and the overall effect on the administration of justice with a retroactive application. Those factors are removed and we just have to focus on fairness and accuracy. The second point is that issue would have required the court to say a judge made decision is somehow so inconsistent