Louisianas nonunanimous jury. On paper with a full breath of the jury trial right but the ruling needs to be put into perspective this ruling the ending or adjudicated it meant nothing to serving a life sentence for work that would be illegal everywhere else but louisianas only place that would you for life on a nonunanimous verdict. The question before the court is why should the fifth amendment mean something less us members of the court were divided on how to reconcile the fracture decision this had clear as to have a remedy for those of the jury scheme that was morally wrong at its inception and unconstitutional. They havent no president ial value this is an old rule and an accident for the six amendment full measure with the due process clause or the privileges or immunities clause of the 14th amendment. With such a long a decision to be explicitly for those members of the court should be a watershed and restores for fairness and accuracy to the jury trials in louisiana. And those promise the fair trial to louisiana. Ready to entertain questions from the court. I think your biggest hurdle where we held the jury trial right itself should not be applied retroactively. What were talking about here is a subordinate right to a unanimous verdict a lesser included right. How do you get around stefano . There are two considerations a way to bring to the courts attention. Stefano has help with the judges ability to make a decision and as this court noted you cannot say whether or not necessarily george rendered decision is more or less accurate manager evander decision it is the intricacies of the jury room and the more analogous cases the brown decision. Provided the same retroactivity standard that was incorporated in stefano that relayed heavily on state interest with the birch decision retroactively which prevented the louisiana from having from nonunanimous. Five of us thought that was a president that was being overruled and therefore the most compelling evidence for those five justices unreasonable . When we get to the reasonable standard it is an objective criterion and we can all agree that requires a unanimous jury and we can all agree the bill of rights are fully incorporated to the states at this point. That goes hand in hand by being dictated by precedent it was such a bizarre decision thats why it lived in a unique universe. Given your answer. And with the inaccurate eviction. And to provide some statistics on the exoneration coming out of louisiana. Half of those were eligible for the verdict and with that population of half, half of those or one quarter of the 65 nonunanimous jury voters. The right to lower the implications. And they reported data mark data of a thousand people in jail and 4500 of those were jailed without a lawyer. The system accounted for that if it is a watershed rule the cant look to see the numbers that are radically different from what we have here. And look to see if process to on the system itself is they are testifies in the historical tradition of this country. Thank you mr. Chief justice. We agree this is a procedural rule so thinking of another case without procedural rules that are not retroactive . The going back to the brown decision do with the same issue of unanimity in the trial. And the statistics of the data of unanimous versus nonunanimous that the statistics and the studies are a mixed bag . One way or the other . And if the process seems fair our tradition holds to gather the original doubt in the unanimous jury to gather. We want people to come together as a community to be convinced beyond a reasonable doubt that this person was of their liberty. So the effectiveness of the deliberation we dont have to have the unanimous jury and with that in accurate conviction. And with those numbers are the florida and then more than half of the population in the jail at that time to leave and for the premise the system can be inaccurate and unfair although it may lead to the right decision. But i dont know how that translates right to counsel. What have we said in our case is about nonunanimous juries . Going back to the brown decision it was require that require unanimous juries the cases that we have endorsed not with case law. I word respectfully disagree. While the court has acknowledged that case for quite some time i do not believe it was used what is being argued to stand for which is a water down bill of rights. And to find this is retroactive . And with that relitigation. And the court was simply to decide retroactivity for another day any procedural protections it will go back down to the louisiana courts where we have a viable claim. Second, first of all i dont agree that there was a decision for purposes but even if the current were inclined to think there was if there was a subsection in one retroactively in the United States Supreme Court to allow like mr. Edwards to get in a different portion little think including those two together inecessarily poses a problem. Justice prior. What is your rough estimate if you win how many would be called for . And that they word establish to have a nonunanimous jury and to breakdown a statistic and from that are different subsets. And also in jail for a significant unanimous jury conviction. Can they handle that . Yes or. How many trials are there any year in the louisiana . I do not know the exact number, varies by jurisdiction. But i believe there was 145,000 cases filed per year. And to a three cases per prosecutor. So that it is more than capable to handle this caseload. We keep saying that there were some in the past that were discovered but its not clear there are any new ones that may be just a watershed rule out there that has not been discovered and that reminds meeting of the quest to have become extinct and deep in the forest of tasmania or howl and then night to say there is one that exist. So getting back to the question that Justice Thomas asked, why should we decide if this exception applies brought by a state prisoner . The retroactivity that can be litigated by another portion and secondly i do believe that my recollection what we happened and on a factual basis so i dont believe those were fully addressed. Another oddity of the watershed rule inquiry in this particular case that is pretty heavily on justice harlans decision and opinion in the mackey case and telco versus connecticut risch on rationale to be excoriated. Is that consistent to apply to hear . I do think it is a watershed rule. There are so many parallels. Both recognized from the bedrock principles and cases that are inconsistent with those principles that restore the fundamental rights. And the unanimous jury requirement. If that is consistent with liberty. I dont know how we can say that nonunanimous. With the Justice Gorsuch opinion to repudiate that . I read Justice Gorsuchs opinion as not finding precedent force. Yes and justice powells opinion was based o what . Justice powell thought that the sixth amendment was fully incorporated to the states. And thought it was incorporated for what reason . He did not believe the sixth amendment was part of the do cost at mom the due process clauses the 14th amendment. Can you explain, counsel the 1600 number . Are those that are in jail currently . At the time is at the total prison population . You mean personal population those that are in jail . Yes justice. So you are saying some of them may not be able to prove they were convicted by a nonunanimous verdict quick. Thats correct they may not be able to do that. Based on the efforts to pull the records on the 1600 people they havent been able to establish that yet but for purposes of just assuming all 1600 could prove it is just to show they have a nonunanimous jury in many instances for this simply ask for the polling that is just a casebycase basis. Thank you counsel. We thought it was a president so that you have a steep climb to make me think almost was anything other than a new rule. I want to focus on the watershed inquiry. You have talked a lot about accuracy. It see previously with the empirical evidence and withy sense and with the ordinary meaning of accuracy with the error rate in trials. And it isnt necessarily in your corner and to allow more guilty people to go free then it stops in and some people from being convicted. So i guess i would like to ask you, the number one if you can test everything i just said but number two, are we talking accuracy in different cents . Your first sentence to us was a nonunanimous jury is no verdict at all. And then you talk and then to lead to the right decision. So do you think weve been talking about accuracy in a different sense than the reduction of errors and whatever reduction . That necessarily needs to be statistics driven verdict by 11 is no verdict at all is an accurate statement with the way the framers intended. S liberty without a unanimous verdict is fair. Coul that i ask about the argument featured prominently in the briefs about the racial aspect of this rule picking up on the opinion how the rule started how does that play into the analysis and how can it play out given that we held back the non retroactive . I think this is a case that is different. You look at the particular individual prosecutor and individual case and thats going to require speculation. Here we know we can show that this was not a unanimous verdict. We had one juror and sometimes to vote not guilty. 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 argument i believe the court had for well over 100 years spoken about the unanimity requirement. The single justice speaking for himself was nonetheless a self the president and in that point of view do we count the dissenters position and what about the fact the majority itself had different views . First, i believe the opinion set up with a path retroactivity. Second, i respect the dissenters viewpoint and realize that may be how they feel today but i do not count the votes in the dissent to say explicitly we have overruled. How do you see this as not a new rule certainly Justice Ginsburg and Justice Breyer and i thought thats correct but some even on the majority did not. Its always required unanimity and we have said we do not have a watereddown bill of rights so the precedent requires unanimity and is fully incorporated to the states and that is louisiana had to apply the scheme and the justices decision is a unique opinion and one that requires us if we are to follow it to take a fundamental bill of rights and merry it umary it up to somethis foreclosed at the time of the opinion and i dont think that is something you will ever see again. I think people explain these are the two lines of president and louisiana has a system do you think that would hold water i think people would say no but then ever since we hadnt found a single one. Is this a false promise . If it is, should we just admit that its a false promise and if it isnt, then what counts, what principle counts . Who are we kidding and what should we do about it . I couldnt frame it better. There has to be something that counts and thats why i think it took away a case that deviated from the president and because you will never see an opinion like this again we can all rest assured this isnt going to open any type of floodgate. This has to be a watershed rule good morning, counsel. Ive been concerned that your approach would require us a new pass on retroactivity we have a long line of cases and many others where weve declined to rule retroactively on collateral and im also concerned about the cases that i think are on point here. The chief justice brought up 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 in accuracy and fairness and with a jury decision and that has not been the position of the court, so it is a bit different. It was an important one in thinking about how the nonunanimous jury actually operate in practice and we didnt apply that retroactively in your distinction in allen v harding. My distinction would be that it was also using the standards of heavily relied upon factors in the state and secondly, again with the challenges its hard to measure. You just do not know if the jury would or would not have found guilt beyond a reasonable doubt where here i can measure it. Several times you cited brown versus louisiana. The opinion they would have applied only on direct not on collateral. The direct collateral review the standard of the time applied to the same standards on direct and on collateral review. I think the premise of unanimi unanimity. I want to press you a little bit more on the questions about what accuracy means because when i heard your answers to Justice Kagan it was hard to distinguish between the accuracy and your view of the procedural element. The fairness preceding. You kept saying its possible for a nonunanimous jury verdict to have reached the right result may be convicting someone who actually in fact committed the crime while still being unfair. Can you help me understand a little bit more how they are distinct and what accuracy means . The accuracy component is we are looking to see whether or not the system of how the trial took place is fair. In gideon we said all of these cases were not represented by counsel was not fair so i cannot tell you today how many of those people would have been exonerated. You may not be able to identify a specific number but i think what they were saying is that there is a significant chance that someone may have been convicted when they otherwise would not have been or when it reached the wrong results. I guess i dont understand youve got to statistic statistg that in louisiana as many have been exonerated or even more for that oregon has a lower rate per capita than the states that do have unanimous rights, so what does it mean, are we trying to ask whether the jury is wrong wrongfully convicting someone because they are the two dissenters in the jury. Fundamentally on this premise it is not a conviction. Looking at how this can stand, the scheme was created so it wouldnt be accurate so it could impact a segment of the population and it is true that it still has those negative effects even today. The racial contamination discrimination any jury that may well have affected the verdict it seems to me that it would be speculation to think the case would have come out differently with a unanimous jury. I dont think we have to speculate here. I have one juror on every count that voted not guilty and some that voted not guilty. People that want to raise retroactively will have to come into court and show they had a nonunanimous jury so there is no speculation as to whether or not we have a proper unanimous verdict in these type of cases. Thank you, counsel. A minute to wrap up. Members of the court that viewed as an anomaly that didnt alter the prevailing constitutional staards, he was dictated by precedent and set t an old rule. Remember the court that viewed ramos was announcing a new rule and theres aatershed rule the unanimity predates the founding and ranks among the most indiensable rights. It improves the accuracy and fairness because the verdict taken is known at all. The state has n legitimate interest and louisianas nonunanimous jury scheme was racist and discriminatory in its region and as they said we shouldnt perpetuate something we all know to be wrong only because we fear the consequences of being right. Thank you mr. Chief justice. Thank you, counsel. Thank you mr. Chief justice and may i please the court. Louisiana got this rule in 1974 after new Constitutional Convention for delegates expressly relied on johnson v louisiana when revising its criminal procedures. The petitioner minimizes louisiana and the interest and dismisses puerto rico entirely that there can be no doubt declaring the rule retroactive unsettles thousands of cases that involved terrible crimes in all three jurisdictions. Requiring the trials and criminal cases would be impossible and particularly unfair to the victims of these crimes. Every juristic state and federal addressing the issue before ramose needed that way as well for almost 50 years. The petitioner can see that they announced a procedural rule so they only apply retroactively if it is a watershed rule while undoubtedly ramose isnt a watershed rule and it isnt rendered unfair nor does it seriously undermine factual accuracy of the verdict. In some cases, unanimity might improve accuracy but in others it might diminish it. Edwards confessed to rate and Armed Robbery and was identified by one of his victims. Because he was slide before the conviction became final, the activity bar should prevent him and others like him from benefiting from the withholding. The court should affirm the denial of the certificate. You talk about the overruling but exactly what it overruled i think is more accurate to say it overruled the decision rather than the opinion because it isnt really clear what the opinion was so doesnt that discount the typical precedent. No, mr. Chief justice. For one thing, i think that the question is how the lower courts would have perceived when they were applying the rule at the time and this court even recognized that the court itself has been inconsistent about what it might mean but there is no question that the result was binding. I tnk that the result was always binding and this cour cos also very carefully guarded in its right to overrule its precedent your friend tells us that it isnt going to have a Significant Impact on the criminal Justice System in louisiana. Do you agree with his math that its going to be simply to or three additional cases in the states . We absolutely disagree with that and i think it is certainly not fair to suggest we can just distribute all serious felonies nearly by there an their and nu0 or more new appeals and new trials for people that might be retroactively impacted by this. You cannot just hand out cases to anybody that happens to be an assistant district attorney. Some of those people actually enforce the law and city court and they do civil cases. Justice thomas. Thank you mr. Chi justice. There has been some confusion but do you know of any court that didnt think it permitted or allowed the use of nonunanimous jurorsr fill in the unanimous juries where permissible . No, Justice Thomas, not a single one, state and federal. 100 of them believed that it was federal precedent and in fact the petitioner even acknowledged that it was federal petition as he did at the time he brought this issue up in front of the commissioner at the state trial level. What role should that play an hour and analysis of whether or not this is a new rule . I think it plays a significant role because both ask what was clearly established law at the time the state and adjudicated the claim and i think it would also disagree with my friends position that the state claims this wasnt at adjudicated on the merits. It clearly was raised and at adjudicated on the merits by the commission and the state District Court in the postconviction relief. One quick question what is your view of the term accuracy and does it mean scientifically accurate of an acquittal or is it rubbing your thumb on the scale one way or another to prevent that conviction . I think the court has treated this question is a question of factual accuracy and the analysis acts even on a harder question. Its not that its aimed at improving the accuracy or directed towards enhancing the reliability or accuracy in some way. Its whether it was an inaccurate conviction and i dont think you can say that about the super majority verdict. Justice breyer. I have two questions. First, as you know any number required in puerto rico or oregon. The reason that is important is its always seemed a kind of compromise here because of the 14th amendment applying to the states our court, this court, the Supreme Court was insisting upon the constitutional procedures but they didnt want to let everyone out of prison so they compromised. Is that so i would like to know the total impact do you know anything about puerto rico and oregon i dont have the numbers they both filed briefs. This would have a Significant Impact in their states and ordered insights the two cases that are currently challenging the agreements and we also have concerns about that and the issue in the state has been raised to challenge the plea agreement as well so it doesnt just affect those that were not unanimous. Its also been raised as a claim to undermine and those are even larger in number, but just in our state we take the promise and issue those numbers at face value and i think 1600 is a lot of new trials. And also, it totally separate question, what do you do about brown v louisiana. It says that its retroactive with a six person jury it cannot be 51 so the six jury cannot be 51 or 10to if the first was fundamental, why isnt the second . I think brown is distinguishable in a couple of ways but i think also, the kind of question of accuracy specifically related to the number of jurors and it held that it was retroactive in part because i think it found five was simply not enough and it was looking at ballew and birch collectively and finding that even where you had a six man jury you had a five person verdict and then the court has said five wasnt enough to have the jury actually do its job. It recognized the sixth amendment right to the council was a watershed rule. The court always pointed to gideon as the one example that would be considered a watershed rule, so yes. But that wasnt based on the original meaning or understanding of the sixth amendment right to counsel in a prosecution from start to finish. If the gideon rule which wasnt the original meaning of the sixth amendment is a watershed rule, how could we find the unanimity which the court held and was dictated by the original meaning of the sixth amendment doesnt rise to the level of the watershed rule. I dont think the historical roots of the rule is what determines whether or not it is a watershed rule. Thats certainly not how the court examined it and that is whether it alters the courts understanding of the bedrock procedural elements i would submit it is a rule that may be built under the bed rock rules but it wouldnt establish a bedrock rule. Those who insisted on including the bill of rights as a condition for the ratifying constitution certainly thought that the rules protected by the bill of rights were bedrock but of this rather strange term of the watershed rules, so isnt there something rather odd about our saying thats what they thought, but we know better now into some of the rules they thought were bedrock rules clearly are not so bedrock or watershed. I thought there were some others like the gideon rule that we think are now more important. I dont think so. Give me hypotheticals of what you think. I think Justice Sotomayor that potentially i look back and one thing i think youre in the context of habeas corpus and this court has never applied anything at watershed talk about that original context of a trial painted by mob violence or something of that nature. How bad the trail that was held without consent . Iac without consent goes to jurisdiction in the context of whether the jurisdiction can entertain the case where a special master without consent could not be jurisdictions. I am a little troubled by the empirical studies. You have it really put any evidence that there arent a significant number of people who have been wrongfully convicted because of the lack of unanimit unanimity. You say some people benefited and some people didnt but what does it matter . That they may have not been guilty doesnt answer the watershed question. Now, i dont think that it does but the premise of the question is on whether it is so seriously undermines the process we can have confidence in the verdict at all and that is the question. Thank you couel. Justice kagan . The court held a reasonable doubt has to be used by any criminal jury do you think that is an active role . I think its possible. The court has not declared it to be retroactive. It is possible. Its hard to say beyond a reasonable doubt standard goes to throughout the course of the trial. It seems youre having trouble with the question because two things are true , we cannot imagine less than fundamental to the entire system but if youre only talking about accuracy like error made across the board , we would have the preponderant standard. So i guess i think it is inconceivable to be retroactive. Justice kagan i do think the court did examine the context of the beyond reasonable doubt standard and it does look at the question of each individual juror and we cant assume they are not doing their duty that was part of the premise of johnston looking at each individual juror to carry the burden and take instructions seriously. And the response to say the estimates of 1600 cases but i havent seen or heard that you do dispute. We dont dispute the 1600 number for disputed the premise to restrict all those cases across the board with the assistant district attorney. Universe has agreed . They have reason to dispute the number the file has been in the system trying to generate data how many convictions there might to be. Your argument is 1600 but its really difficult what we expected it to be difficult if there were a watershed rule if this were a significant change, what we expect there to be some benefit to the state . So what do they tell us about that matters . Every retroactivity question assumes or takes into account there would be some burden that is built into our reliance interest. I thank you would agree it is watershed regardless on the burdens of the state. If it is watershed. You even told me not to seek that thats why i am talking about was the asked the question of the watershed it doesnt matter how many cases there are. And if it was its a simple number. Right . Yes. And then to calibrate. Justice kavanaugh . Good morning general merrill in the Justice Gorsuch it one Justice Gorsuch opinion in the history of nonunanimous juries with a 1974 adoption but how the racebased coming from a similar place and in this case the state uses the strikes to strike all but one black juror because several of them in part have a Family History of incarceration and then you are left with one black juror and a black defendant and then on the Armed Robbery count and to kidnapping and rape. And the one juror is a black woman. The black juror. This case seems like a classic example of what we were concerned about with a common to read challenges on the basis of race within the nonunanimous juries complement the jury challenge we havent had a successful challenge but certainly the facts seem troubling how it all played out and you can react to that if you want. Justice kavanaugh that claim was rejected because there is no basis in this case. You can read the record to see there was non racebased reason for striking what was struck and in some of these cases, a white mail and blackmail juror struck at the exact same time for the exact same reason, a white mail and blackmail juror struck at the exact same time for the exact same reason asking about 2254 d Justice Thomas and gore search asked whether 2254 had an independent bar regardless what we say and an amicus brief 2255 d one says there are no watershed exceptions because 2254 d1 precludes a federal court from granting relief if the claim that had the unreasonable application only in that circumstance and that makes no mention of watershed rules that these are tasmanian tag one tigers and there are none left the federal court thought it wouldnt be engaging in that analysis. Yes that it asks a very narrow question at the time the state adjudicated the claim. And we answer the question the court posed as a separate threshold. You think they are wrong to do that 2254 be one does supersede . Independent inquiry . We simply argued in our brie brief. You dont have a position on the amicus brief quick. We join the United States to say it should be litigated further forgot to that point. Our position even under the watershed to be under that statute. One minute to wrap up general. Thank you mr. Chief justice while the ramose decision is important the unanimity against the states with the watershed rule. Not a fundament he unfair procedure or the absence. Msf the circuit denial. Thank you counsel. The will announce that applies prospectively with a conviction under direct appeal. That follows from a strict application the ramos rule is new because whatever disputes without the court and with those convictions in 2011. And as a rat watershed it is not essential to accuracy or a fair trial as the chief justice suggested at the outset of the argument the jury trial itself is not a watershed so those cannot be so also reflecting the purposes of federal collateral review he this is not a substitute for direct appeal when obtained under the law at the time become final it should stay final outside the narrow exceptions. Isnt it right to a unanimous jury more important with factual accuracy then our right to a jury itself . You would expect a judge to be as accurate presumably or more. So if stefano is not retroactive and then that makes the case. And to say its just hard to tell if that is enough but that point even with the stuff know the court has repeatedly declined to defined subsidiary rights to both reaffirm the courts decision that is not retroactive and also that crosssection requirement so those subsidiaries including the issue here dont me to the watershed test. Does the federal government have any light to shut on the statistics we have been talking about . No mr. Chief justice what we know best is the federal interest there is a Ripple Effect but that would be an impact on the federal system. Yes thank you mr. Chief justice. Counsel, word you briefly discuss the term accuracy and what you think it means in this context . Justice thomas, the court has not always spoken with one voice on that there are a number of opinions where accuracy could mean the actual accuracy. Like when discussing offered to make the point it could make a trial less accurate. Like when discussing the First Amendment right. And to have a more generous understanding but that doesnt come close especially with johnson versus louisiana without the unanimous jury verdict. What role do you think the rule of the anonymous jury rule should play in our analysis . As some members took that into account in the decision last time with ramos but Justice Kavanaugh opinion said there is a separate question and i think Justice Gorsuch said you should not double count retroactive activity and Justice Kavanaugh recognizes the racial issues seem to suggest it should not apply retroactively. I dont think that cannot be used here. Where is the authority of the court where the rule retroactively comes from . And with the danforth it reflects the interpretation of the hay be a statute. The court has exercise the right to control the finality and occlusion. And there is a similar sense of authority authority. This may be repetitive but talking about the angloamerican system in the seventh amendment jury trial. Now within the confines of that system are you trying to think of how basic it is . And then compare it that everybody would be released from jail. That is the old system. What do you think . Well justice prior talk about the Angle American system it is notable they continue on a unanimous non jury verdict why johnson versus louisiana with respected institutions like the aba and professors have all endorsed unanimous jury verdicts. Such as avoiding hung juries. Of course the court concluded in the sixth amendment to require unanimity i dont think thats a same thing to say that with that accuracy and fairness with that accuracy and fairness. Where does the authority to impose and the interpretation so its not an interpretation of the statute and with the suspension clause is that what you think it comes from . I want to distinguish between the general retroactivity that i meant to refer to earlier with that he be a statute with that he be a statute with that authority for the exception and then the way they suggested the exception is rooted in the constitution is not reached a similar determination with the watershed rule for then it to be applied for the first to confront that and it is supported by the equitable determination similar to that so is there a possibility that exception doesnt matter . What would that be . So to be candid with the question presented with retroactivity and the opinions of ramos and with the straightforward case that is plenty to resolve it and that is a separate basis. Counsel do you think the exception can you think of any examples of the rule . And with the remaining time for that and why it is necessary to increase the accuracy of jury verdicts but i cant think of any justification other than that, the unanimity requirement the constitution sees that sets our founders must have thought that process enabled accuracy. I dont know why i should secondguess or on what basis we would secondguess. The plurality opinion didnt rely on functional considerations like fairness and accuracy, interpretation of the sixth amendment, unanimity requirements or surfaces that are not notices. And the history is valid, a number of historical bases for unanimity requirement. One sure who disagreed would be committing perjury. It was manifested in the requirement that parliament passed laws by unanimity but there are medieval origins of this but dont necessarily go to accuracy or fairness as we relate today. The substantive rule exception to teague is alive and well, to the watershed rule exception, the only one in recent memory, the things we think of as watershed have been recognized earlier. You told Justice Breyer the unanimity requirement, on the majority side, it absolutely is. It is the same way beyond a reasonable doubt is basic, what in our system, 2d to find the defendant guilty. If you were not convicted by a unanimous jury, havent been convicted of a rule like that does not have retroactive effect . I take all your points about the decision in ramos, the fact that a constitutional rule, the text history of the constitution itself, and not just talking about origins of the rule or goes back to founding times. There is an idea that in those founding times, what it meant to have, a fair trial by jury and accurate trial by jury, what came out of the process, wasnt a part of it, there wasnt a true conviction. Just trying to take what ramos says seriously. And you could say the same thing about duncan, what the court has found determination by jury beyond reasonable doubt is required on the merits and is not retroactive on that, return to the Courts Holding in johnson versus louisiana, a nonunanimous jury verdict does not impu the fairness or accuracy of the verdict of guilty. Thank you. Just to pick up that line of questioning, the watershed rule, served the purpose at some point, watershed rules of criminal procedure, come forward, hard to see if this doesnt qualify, and essential component, what might emerge. Is that a fair statement of the government position . Yes. It is not possible such a right could emerge and i agree with the courts statement that it is unlikely one will emerge. Does the government have anyone in mind that might emerge . Any possible hypothetical you could imagine . There is nothing we are thinking of. When he made the statement which for many decades the court was well aware of a nonunanimous jury issue and so the court thought that was something that could arise in the future seems unlikely it would have said no watershed rules are likely. A lot of credit for thinking about these even shoe outlet hes, and suggest postconviction review here has been overextended and teague attempted to rein in considerable efforts, to apply the constitution postconviction this whole area, teague itself is outmoded and maybe just give up the ghost . Is that the governments essential point of view . Not sure i would go there but theres a lot of merit to what you are saying, and judge friendlys article relying on, saying something similar to that and substantive exceptions when something was not a crime and watershed rule exception is similarly high, something so serious that you are not sure a crime was committed. If it is that narrow teague is a good purpose but i agree they could be over read and do real damage. Thank you, good morning. I want to follow up on something new course which was asking the solicitor general of louisiana about, do you think the number of cases, Something Like watershed. The reasons for having a high bar for the new rule and watershed rule, as i was discussing with neil gorsuch, the court in teague broke with past jurisprudence which was too lax and finality and federalism, the reason it did that, was worried about largescale disruption of the state criminal Justice System, would be worth here. Justice barrett. Good morning. I want to talk about accuracy and the first thing i would like to ask is a followup to your dialogue with Justice Thomas, this is a point of clarification. You were distinguishing between factual accuracy and what i understood you to say would be a generous standard of the likelihood of Wrongful Conviction. What is the difference between that and more generous if i understood you correctly . A tricky question. I understood some of the questions earlier in the argument, and favor the defendant. If they a risk of convicting, wrongly convicting outsize risk as opposed to not convicting i do think it is an abstract question but as i said to Justice Thomas, however you resolve the abstract question i dont think it will matter. Our decisions havent spoken necessarily with one rot life as the accuracy means. What is the factual accuracy as opposed to Wrongful Conviction . That is the case about excluding confession, after requesting a lawyer and it might contribute to factual accuracy, they know what happened. Wrongful convictions, you might have a different view of that but no matter how you cash out that theoretical distinction, this doesnt rise to a serious accuracy problem. A minute to wrap up council. I close by saying the courts decision will have significance Going Forward but the question before the court is a different one. It is the teague doctrine that frees the court to reconsider its constitutional decisions without having the risk of seriously disrupting judgments. Convicted of serious crimes, his conviction became final a decade ago, to retry now would require a minimum release their trauma and in many cases retrial causing disruptive effects in the federal and state systems, heartland case for the teague bar, the final commission should remain final. Mister belanger, rebuttal. Unanimity had reasonable doubt are two documents that work handinhand to make sure there is a judicial system. They point to the realization, legitimate risk of inaccuracy in the system that matters. 10 innocent people to jail, rather than setting one guilty person free. An opinion that was dead on arrival because it predicated its decisive vote on analysis foreclosed at the time it was decided. He removed this form from the side of the legal system and as such it became a unique case which falls on the line the checks the boxes of being an old rule ended new rule. First ramos is an old rule. It ignores, it has followed preexisting precedent dictated by the case law that preceded it. Ultimately the state fails to dispute that jury unanimity and incorporation of jury trial deeply rooted in american jurisprudence. Lets be clear. Ramos did not break any new ground under teague. For members of this court, a watershed rule of procedure, the state does not address the parallels between ramos and gideon. Both decision were bedrock principles and both decisions compelled outlier states, they previously refused to recognize. This proves the case beyond that. Nonanonymous juries contravene state interest in finality and repose. They recognize the original motivation for laws mattered notwithstanding subsequently ratification. The same is true here. In the end estate has no legitimate interest in retroactivity, but Mister Edwards languished for the rest of his life. What grounds make this happen when you know the conviction is unconstitutional . The answer to that question is none. Thank you, mister chief justice. The case is submitted. Thursday on cspan for general speeches. Members begin work on legislation to decriminalize marijuana at the federal level. And expense federal convictions for lowerlevel offenses. On cspan2 the Senate Returns to consider judicial and executive nomination. On cspan 3 the Senate Homeland security can meet at 10 am to review the fbi russia investigation and other actions at the fbi and justice department. Former fbi official and in the afternoon the Aspen Institute for cybersummit, members of congress and the acting director for infrastructures a number of republican and Democratic Senators praised the career of outgoing senator Lamar Alexander and his efforts to Work Across Party Lines on major pieces of legislation. He chairs the Senate Health committee and served as tennessees governor, education secretary and spend time early in his career as a senat staffer. His term ends in january. He talked about his time in the senate. I think my friend
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