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December 2, 2020

Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

Lions-and-tigers-and-bears-oh-my

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.  This Bloomberg Law account of the argument, headlined "Justices Divided on Making Jury Unanimity Decision Retroactive," provides a great summary, and here are excerpts:

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them. 

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides....  It’s unclear how the newest justice, Amy Coney Barrett, will vote.  She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity.  Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively....

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison.  The lone Black juror voted to acquit on all counts.  The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes.  Nonetheless, those states, Puerto Rico — which also had them — and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.  That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals.... 

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.  Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”  Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.  “You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said.  “I mean, some of those people actually enforce laws in city court and — or do — you know, they collect money from — they do civil cases.”

One way for decisions to apply retroactively is if they reaffirmed an old rule.  Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.  Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively.  But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right — it has indicated the right to counsel that predated Teague could be one — leading Gorsuch to wonder if the watershed test is a “false promise.”  Alito said it reminds him “of something you see on some TV shows about the — 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 Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.  “I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the — and the one dissenter in the jury or the two dissenters in the jury were right?”...

[T]hough she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.  “I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked....

The court could also avoid the retroactivity issue entirely.  Some justices — at least Thomas, Alito, and Kavanaugh — expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

December 2, 2020 at 11:59 PM | Permalink

Comments

One thing that I have not heard discussed in the recent retroactivity cases is how Teague fits with the changes in AEDPA and the current language in 2254.

My rough read is that states get to decide if they will permit collateral review (or re-open hte direct appeal) based on a "new" rule of law. If they do permit such collateral review, they have to follow the current law.

If a state, however, declines to let the defendant seek collateral review (or re-open the direct appeal), then Teague would apply to whether on de novo review in federal habeas the federal habeas court would get to apply the new rule.

But that is just a rough read and I don't think the Supreme Court has ever expressly addressed this issue.

Posted by: tmm | Dec 3, 2020 10:19:04 AM

What are the chances a majority holds that AEDPA has superseded Teague's watershed exception as per the amicus brief?

Posted by: Da Man | Dec 3, 2020 4:36:52 PM

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