As we pointed out in a March 2019 post, the Framers of this nation’s Constitution expressly recognized the fundamental right to a trial by jury by its inclusion in the Sixth Amendment. The intent of the Framers that a jury verdict be unanimous was evidenced in Supreme Court Justice Joseph Story’s Commentaries on the Constitution of the United States (1891): “A trial by jury is generally understood to mean . . . a trial by jury of twelve men . . . who must unanimously concur in the guilt of the accused . . . . Any law, therefore, dispensing with any of these requisites, may be declared unconstitutional.”


Ratified in 1791 as part of the Bill of Rights, the Sixth Amendment right to a jury trial did not apply to the states until 1868 when the Fourteenth Amendment was ratified, making the amendment’s Due Process clause (and the entire Bill of Rights) applicable to the states.


1898: Louisiana Allowed Nonunanimous Verdicts to “Sanctify” Jim Crow


Three decades after the ratification of the Fourteenth Amendment, the State of Louisiana, in its 1898 constitutional convention, became the first state to allow nonunanimous verdicts in criminal cases. As stated in the Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, 8-9 (1898), the very purpose of that constitutional convention was to effectively sanctify Jim Crow laws and to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”


1934 Oregon Allows 9 of 12 to Convict


In 1934, the State of Oregon became the second state to reject the historical right to jury unanimity. That decision was also rooted in that state’s sordid history of racial and ethnic discrimination. It came after a jury could not reach a unanimous verdict in a case of a Jewish man being tried for the killing of a Protestant man. Led by vicious editorials in the Morning Oregonian, the public outcry was so swift and intense that the Oregon legislature proposed a constitutional amendment allowing for nonunanimous jury verdicts—an amendment that a racially-biased population quickly approved.


The U.S. Supreme Court in 1970 held that in all criminal proceedings the due process clause of the Fourteenth Amendment requires that guilt against a defendant be proven beyond a reasonable doubt. Two years later, the high Court took up the issue of Oregon and Louisiana’s nonunanimous jury verdict laws based on the argument that they effectively compromised the reasonable doubt standard.


In sharply divided opinions (4-1-4) in Apodaca v. Oregon and Johnson v. Louisiana, the Court ruled that the reasonable doubt standard does not demand jury unanimity and that verdicts of 10 (as in Louisiana) and 9 (as in Oregon) out of twelve are constitutionally permissible.


2020 SCOTUS Requires Jury Unanimity on Guilty Verdicts


On April 20, 2020, the Supreme Court firmly clarified the jury unanimity issue in Ramos v. Louisiana by holding that criminal jury trial verdicts must be, as is the case at the federal level, unanimous.


But before the inmates in both Louisiana and Oregon could get their hopes up too high about new trials, the majority opinion in Ramos, written by Justice Gorsuch, said those inmates would have a high constitutional bar to surmount to get Ramos applied retroactively. The Gorsuch opinion warned:  


“The second and related reliance interest the dissent seizes upon involves the interest Louisiana and Oregon have in the security of their final criminal judgments. In light of our decision today, the dissent worries that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral (i.e., habeas) review.


“But again the worries outstrip the facts. Under Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review. True, Teague left open the possibility of an exception for ‘watershed rules’ implicat[ing] the fundamental fairness [and accuracy] of the trial.’ But, as this language suggests, Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it. And the test is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments.”


Court Hints Will Prevent Retroactivity to Preserve “Finality of Judgements”


The “watershed rule” was left dangling in Ramos. Justice Brett Kavanaugh, however, made it clear that he thinks the unanimous jury issue does not fall within the Teague exceptions.


The Ninth Circuit Court of Appeals will certainly hear the Teague issue in habeas corpus proceedings filed by Oregon inmates, and the Fifth Circuit Court of Appeals will hear habeas cases filed by those in Louisiana. The Ninth Circuit is notoriously liberal, and the Fifth Circuit is infamously conservative. The two courts will most assuredly reach stark contrasting decisions on the retroactivity issue, forcing the Supreme Court to ultimately decide that issue.  


Should the defendant’s convicted with less than unanimous verdicts benefits from ruling that practice was unconstitutional? Of course, anything less would require an intellectually dishonest preference for process and finality of convictions over the Constitution’s demand for due process.