Transcripts For CSPAN2 Edwards V. Vannoy Oral Argument 20240711

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 States Supreme 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 States Supreme 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 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 standards, he was dictated by precedent and set out an o rule. Remember the court that viewed ramos was announcing a new rule and theres a watershed rule the unanimity predates the founding and ranks among the most inspensable rights. It improves the accuracy and fairness because the verdict taken is known at all. The state haso 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 think 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. Chief justice. There has been some confusion but do you know of any court that didnt think it permitted or allowed the use of nonunanimous jurors or 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. We havent found anything watershed. Are we claiming an exception that we are never going utilize . No, Justice Kagan. I dont think so. I think its fair counsel, this is start again. Give me hypothetical. What you think might qualify. Okay. I mean, i think justice sotomayor, that i would look potentially back at the purpose of the schedule. For one thing you are applying come here in the context of habeas corpus so thats important. This court has never applied anything of watershed other than gideon but when you talk about the original context of habeas corpus, the court has pointedo things like a trout child thats painted by mob violence or something of that nature. That is one potential answer i think to that question. How about a trial that was held by a special master without consent . Well, think a trial held by a special master without consent potentially goes to jurisdiction. The court has also addressed the historical schedule of the written in the context of whether court had actual jurisdiction to entertain the case. It was a quarter competent jurisdiction where special master without consent would arguably not be according confident jurisdiction. All right. I i am a little troubled by the empirical relief but for different reason than you are. You havent put anything to the contrary. You havent put any evidence that there are not a significant number of people who have been wrongfully convicted because of a lack of unanimity. You say their son people benefit and some people didnt. But what does it matter . Meaning if some people didnt benefit from the real and may have been not guilty, doesnt that answer the watershed question on its own . No, i dont think that it does because i think the focus of the question focuses on whether it is a procedural element that is essential to the proceeding and so seriously undermines the process that we can have any confidence in the verdict at all. I think thats what the question is. Thank you, counsel. Justice kagan. General, this court held a reasonable doubt standard had to be used by any criminal jury. That was before teague. Do you k 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 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. I cannot think of any justification other than that with that requirement that the constitution says. Our founders must have thought that process enabled accuracy. Of a shared secondguess them on what basis. Starting with the second question first, the plurality opinion and ramos and then that interpretation of the sixth amendment and then for those purposes the most extensive discussion and that opinion is no longer governing but a number of different historical with the unanimity agreement with the notion one juror who disagreed by committing perjury and then the age of consent among others is manifested by unanimity. I do think there are some versions of this that dont go to accuracy or fairness. With their first question that it is the only one in recent memory. What we think of as watershed. You troll justice prior the unanimity requirement running the opinions on the majority side they say absolutely it is with the debate in the exact same way pr under reasonable doubt beyond the characteristics and whether jury has to do to find the defendant guilty obama says if you have not been convicted by a unanimous jury he been convicted at all. So how does it be it doesnt have a retroactive effect . And i take all of your points of the merits decision and ramos but as they explain the constitutional rule is compelled of the constitution itself doesnt mean it is retroactive. Im not talking about the origins of the rule there is more and ramos and the room was fought on thought of has inherent with a trial by jury and accurate trial by jury that was not a part of it that wasnt a true conviction. That is what obama says. Absolutely all the way do think we could say the same thing about other cases in which the court has found a determination by a jury beyond a reasonable doubt is required on the merits and its not retroactive because they are is a different inquiry there. Holding onto the ruling that its not impure fairness or to be guilty. Good morning counsel. Right up there with the line of questioning i understand your argument the watershed rule and the exception may have served the purpose of one. Because we. Its hard to see and that the sound on the founders of the jury trial its pretty hard to see that would qualify. Is that fair for the governments position . But i agree with the courts repeated statements very unlikely one will emerge at this point but i agree with the courts repeated statements very unlikely one will emerge at this point. With those hypothetical . There is nothing that be thinking of but when he made that statement that was repeated for many decades to be aware of the non unanimous jury issue if they thought that could arrive in the future it wouldve said no watershed rules are likely no watershed rules are likely i appreciate that but that postconviction review is overextended and while once the attempt to rein in considerable efforts to fight to the constitution this whole area was outmoded and then give up the ghost . Im not sure if i go all the way there but there is a lot of merit to what you are saying. If you look back at justice harlans opinions giving rise to the article it said something similar. The exception has to be narrow if it is not a crime and the watershed rule has to be something so serious you are not sure crime was committed. So. Justice kavanaugh. Good morning. Following up on what Justice Gorsuch was asking the solicitor general of louisiana , which is do you think the number of cases that would be affected has any bearing if something is watershed . I think it does. Goes to the reason to have a high bar for the new and the watershed inquiries. The court as he consciously talks about the jurisprudence and then to emphasize federalism to adopt the new rule and the reason it did that it was worried about largescale disruption from the state. Thank you good morning, mr. Michel. I want to talk you about accuracy and cursing at 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 have been the more generous standard of considering the likelihood of Wrongful Conviction. What is the difference between the two of those, and how is the latter more generous than the former, if i understood you correctly . T its a tricky question. I understood some of thede questions earlier in the argument to reflect the view that there should be a sort of thumb on the scale in favor of the defendant. If theres twice as likely our risk of wrongfully convicting, that should have outsize risk as compared to not convicting. I do think its a sort of difficult abstractt question, bt as i said to Justice Thomas, i dont think however use all that abstract question, its going to matter here. What about factual accuracy . If we havent spoken with one voice with that accuracy means so what is factual accuracy at the risk of Wrongful Conviction . Keller is a good example about excluding a that was a case about excluding a concession after he requested a lawyer, it actually might contribute to factual accuracy, what actually happened if you were worried about Wrongful Convictions, a different view of that but no matter how you cash out the theoretical distinction, this doesnt rise to a serious accuracy problem. A minute to wrap up. This courts decision will have great significance Going Forward but the question today is a different one. The ramos plurality noted the teen document freeze the court to reconsider its decisions without having the risk of seriously disrupting final judgments and we think that is the right result here, convicted of serious crimes after the trial, it became different and live coverage on cspan2