Legal Docket: Unanimous jury conviction

BUMPER MUSIC: Gene Autry Back In The Saddle Again

NICK EICHER, HOST: It’s Monday morning and we’re back in the saddle for The World and Everything in It after last week’s WORLD staff retreat. 

Today is the 28th of October, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Good morning to you!

And I just have to say something about last week. WORLD staff met together in the mountains of Asheville, North Carolina. We are a far-flung workforce, which means we don’t often get to see our colleagues in person. 

While we were together, we renewed our commitment to sound journalism grounded in facts and biblical truth. And it was rejuvenating to me to be with others who share a vision for this kind of journalism.

EICHER: Toward the end of our time today, we’ll share a little more about it. Just one thought I wanted to interject here is that we created our entire Friday program in front of a live audience in Asheville. These were some of our local friends who support WORLD, as well as the WORLD board of directors who’d gathered for our official annual meeting, as well as our staff. 

It was a slight variation on The World and Everything in It Live and our next one is in Nashville—so from Asheville to Nashville—music city—November 21st, a Thursday night.

I am told we are two-thirds full. So the positive way to put that is we’re one-third empty and it’s positive because that means there’s a seat for you. But you’ve got to go online to claim it.

Visit worldandeverything.org, look at the top of the page, hover over the “engage” tab, and then click on live events. Just follow the directions. I expect we will fill the venue completely, but you do still have time to claim your free tickets. Just not a lot of time.

REICHARD: Looking forward to seeing all-y’all there November 21st.

Well, on to today’s Legal Docket, and we begin with the Bill of Rights, the first 10 amendments to the U.S. Constitution. 

During the early years of the United States, the Bill of Rights was understood to apply only to the federal government, as a limit of its power over the individual. 

The states were free to experiment and allow for nuance suited to their regional populations.

EICHER: But Supreme Court opinions since then have altered that understanding. Using a legal doctrine called “incorporation,” the justices applied some of the rights to the states via the 14th Amendment. That’s the one that prohibits the government from depriving you of life, liberty, or property without due process, or a fair procedure to sort it all out. 

Just last year, for example, the high court decided for the first time that the Eighth Amendment’s prohibition on excessive fines applies to the states. 

So you might expect someone will come along to ask for more.

REICHARD: And that someone is a man in Louisiana (Ramos v Louisiana). 

Back in 2016 a jury found Evangelisto Ramos guilty of killing a woman in New Orleans. For that, Ramos received life in prison without the possibility of parole. 

At the time, Louisiana allowed conviction with less than a unanimous jury. 

Ramos wants the Supreme Court to say that Louisiana’s law was unconstitutional because it allowed just 10 out of 12 jurors to convict.

EICHER: The Sixth Amendment to the U.S. Constitution guarantees the accused certain rights in criminal prosecutions. One of them is a speedy and public trial by an impartial jury. It says nothing about whether the jury must be unanimous in its decision, though.

But Ramos’ lawyer argued unanimity was assumed by the founders.

The only thing in the way of that assumption is Supreme Court precedent. Decisions of the court permit a non-unanimous jury verdict in criminal cases. So Ramos’ lawyer argued to throw out that Supreme Court precedent.

REICHARD: But neither is jury size mentioned in the Sixth Amendment. 

That omission brought Justice Samuel Alito to ask if that makes a difference.  Many states permit as few as six jurors to decide a defendant’s fate. 

Listen to this exchange with Ramos’ lawyer, Jeffrey Fisher.

ALITO: So if you hypothesize a jury pool with a certain percentage of jurors who were inclined to acquit, and you ask: is there a greater likelihood of acquittal with a 6-0 verdict than a 10-2 verdict or an 11-1 verdict? Or if the state decides to have a jury that’s bigger than 12, a 15-person injury, 14-1, 19-1, when we get to the point where the chance of acquittal is in favor of the non-unanimous rule, would that be unconstitutional?

FISHER: My rule is that any time the state deviates from unanimity, it is unconstitutional.  So even if a state were to go beyond the number of 12, and I think the reason why is because it’s a different phenomenon when 
somebody disagrees in the jury room.

Defending Louisiana was its solicitor general, Elizabeth Murrill. She noted that last year voters in her state changed the law to require unanimous decisions in most felony trials—going forward from January 1 of this year.  That put it in alignment with every state except Oregon.

But prior to that, her state relied on Supreme Court precedent for half a century that allowed for non-unanimous verdicts.

Murrill argued that to retroactively apply the new law would wreak havoc. 

MURRILL: We do have 50 years of reliance, which is why I emphasize that we have 32,000 people who are incarcerated right now at hard labor for serious crimes. And every one of them would be able to file an appeal. 


Justice Brett Kavanaugh pointed to history revealing Louisiana’s prior law had racist roots, aimed at disempowering minorities who might differ from majority whites sitting on a jury. 

Perhaps that informed Justice Neil Gorsuch’s question to Murrill, again for Louisiana.

GORSUCH: You say we should worry about the 32,000 people imprisoned. One might wonder whether we should worry about their interests under the Sixth Amendment, as well. And then I — I can’t help but wonder, well, should we forever ensconce an incorrect view of the United States Constitution for perpetuity, for all states and all people, denying them a right that we believe was originally given to them —because of 32,000 criminal convictions in Louisiana? 


MURRILL: No, Justice Gorsuch. 
But we don’t believe that it was a right that was given to them in the Sixth Amendment. 


Some justices got a pointed rebuke from Justice Alito over the matter of stare decisis. That’s a legal doctrine that says courts must follow earlier rulings in similar matters. He mentions Apodaca. That’s the decision Ramos wants the court to overturn.

ALITO: You are asking us to overrule Apodaca, so we do have to think about stare decisis. And last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis and about the impropriety of overruling established rules.

Justice Alito was referring to the four liberal-leaning justices there. But in this case, conservative Justices Gorsuch and Kavanaugh also sounded skeptical of Louisiana’s argument.

If so, the numbers favor a win for Ramos, at least in some part.

OK, this next case (Rotkiske v Klemm)? I’m going to move quickly through it. 

You’ll understand why in these comments from the lawyer for the petitioner and two justices:

GANT: I must candidly acknowledge that the complaint here was not a paragon of clarity. It could have been done better.

SOTOMAYOR: It is terribly confusing because of the confusion of the use of terms.

KAVANAUGH: ‘Cause clarity. We do need clarity. (Lawyer: I will do my best.)

This case asks the question: when is it too late to sue for a past-due debt under the federal law called the Fair Debt Collection Practices Act?

When the collector sued the debtor in this case, the wrong person accepted service for the lawsuit. The case proceeded to a default judgment against the real debtor, who didn’t find out about it until he applied for a mortgage years later. 

He sued, arguing the law on debt collections doesn’t allow for serving the wrong person lawsuit papers.

But the governing law states only one year in which to sue over debt matters.

I’m thinking with all the confusion over what had happened or even what the legal question actually is, this case might even end up as a DIG, or “dismissed as improvidently granted.” 

And that is this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) In this June 20, 2019 file photo, The Supreme Court is seen under stormy skies in Washington. 

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