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 StatesSupreme 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