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tv   Ramos v. Louisiana Oral Argument on Unanimous Jury Verdicts  CSPAN  October 15, 2019 11:07am-12:12pm EDT

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>> the most pressing issue is the student loan crisis and how it is crippling my generation. i am interested -- strictly for job security. i hope maybe i can have a house. the powers that be, looking at how much this is going to cripple our generations. the next 20 years of my life, i still have a student loan. >> voices from the campaign trail, the battleground states to or. >> the us supreme court hears or like him and for ramos versus louisiana, where unanimous jury verdict is
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constitutionally required in, cases for federal and state courts. evangelista ramos was convicted of second-degree murder when only 10 of 12 jurors found him guilty. at that point under louisiana law unanimous juries were not required but since the louisiana has passed a law requiring unanimous juries but does not apply retroactively to his case. he was sentenced to life in prison without parole. the louisiana supreme court denied him a review. this is about an hour. >> in case 185924, ramos versus louisiana. mister fisher. >> mister chief justice, may it please the court. this court reaffirmed the well-settled rule that incorporated provisions of the bill of rights applied the same
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way to the state as they apply to the federal government. taking that as a given the state does not defend justice powell's pivotal vote. that flouted president at the time and since been relegated to nothing but isolated relic of an abandoned doctrine. the state's only defense in support of the judgment below, the sixth amendment does not require unanimity at all in safe courts are in federal courts. the court has said many times of this, what the court has it is the sixth amendment right to trial by jury carries with it the essentials of common-law. the common-law authorities are uniform, explicit absolute. unanimity is an absolute requirement. and the reason they gave for that rule is they resonate as much as they did then.
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we were not prepared to take away somebody's liberty and as a cross-section of the community uniformly agrees to criminal punishment is appropriate. i don't think the state disputes the historical account i gave you is central to the functioning of the jury trial. the drafting suggests that they would dispense with that, and if the historical requirement is no more unanimity than the 12 person rule. the state has over read the draft history. the court itself set in place is dealing with provisions like this and amendment, double jeopardy clause, we do not read into a deletion of language, any meaning when there's no contemporary evidence designed to change the meaning of the provision and that is all the more true here because the
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contextual backdrop, the fact that many states at the time had trial by jury provisions in their own constitutions and note those provisions require unanimity but some didn't. the rule was the same across those states. the thing the framers would have taken from the context of the time, doesn't matter if you have unanimity in the provision. it requires it either way. >> to give them -- to be fair even if some have unanimity and some don't and you have a draft that says unanimity i don't understand why you would take it out and argue it doesn't matter whether it was in or not why would they take it out? >> the best historical evidence that it got latched to a debate about that requirement, what james madison did was take away the collaboration of trial by
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jury, and to respond, the pennsylvania constitution. the time of the founding require unanimity explicitly and justice wilson rewrote the constitution in pennsylvania to take it out and justice wilson was one of the leading expositors of the common-law notion of trial by jury you -- requiring unanimity and that's the last thing i wanted to say about the drafting history. one would think of the framers dispensed with 400 years of uniform practice somebody would have said something. you have justice wilson right after the constitution's founding document after unanimity is indispensable, justice dorian commentaries using the same word, indispensable. any number of other criminal law treatises at the time gathered in our brief, all reinforcing this notion. >> you are asking us to overrule, we have to think
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about last term the majority was lectured pretty sternly in a couple dissents about the importance about the impropriety of overruling established rules. thinking about the dissent in franchise tax board. very important consideration, reliance, it would be helpful to me if you could compare the reliance at issue here, louisiana, oregon, tried thousands of cases, reliance -- the court said this was okay. can you compare the reliance with the reliance on franchise tax board and nick? >> i would like to make a legal
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comparison and factual comparison. the state is claiming to rely on appetite, but they are not refunding the rule that the 14th amendment doesn't require states to have this, they are asking for a new rule that was never adopted and the court last term, in part of those disagreements, some justices said it is okay to rehabilitate an old rule. >> i don't want to interrupt, we are not tied in deciding this case, the decision of this court, apadaca, we could affirm it on different grounds where the status is advanced but i want you to complete -- >> let me give you three reasons as you take that as a given, shouldn't carry the day but sticking with the law three
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things. justice powell's vote was an isolated vote, no majority for the court and what was rejected -- >> this is so unfair but could i ask you to take that out of your analysis. for the remainder of your analysis, it is an important consideration which i'm not sure how to think about but if you assume this was any old 5-4 decision? >> to my second point would be the 14th amendment rule had it been adopted by a majority is derelict in the law, isolated, abandoned relic of past jurisprudence and you don't have to look further than the last term in tim's. you can look at the mcdonald opinion and any number of others that say the same standards have to apply to state and the federal level.
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>> it would be an outlier that says we have an exception here. we are going to treat this amendment to friendly but we tolerate a significant degree of diversity in state criminal procedure and this could be one of those sorts of rules where we say there are times we think the state gets to decide something on its own and so it is an anomaly. this is not a kind of anomaly that should concern us much because in general criminal procedure law is loaded with anomalies. >> let me respond to one thing. what i would say if you look at the court's incorporation jurisprudence that's one place the court has not accepted anomalies and the court has said this is at a low and but when it comes to state following fundamental rules of the road and the bill of rights. on that level it is a different situation.
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>> i recognize that. >> pardon me? >> sending supplies to the state, recognize apadaca as an exception, recognize one exception to complete incorporation. >> that's right and my argument today is even though that has been an exception for several years it shouldn't go forward. it doesn't have any footing in the law. let me turn back to justice alito's question because you're asking about convictions. this is another area where it does isis has less to save and normal. there is a just -- a different set of doctrines designed has reliance interest in their past present from the court.
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unlike the ordinary case with other doctrines, you have a different set of doctrines the state can invoke to support its reliance -- >> we don't know how a decision is your favor would play out in collateral review. even in federal court or state court but you think i can well envision seeing you up here, this is the rule you are trying to persuade us to accept, watershed rule of criminal procedure. you think that is frivolous? >> i don't think it is frivolous was the best thing the state will say for itself is duncan itself when the court incorporated the right to jury trial did not help to be retroactive and the court reaffirmed that precedent but the core point i am making today's in deciding whether to overrule the case, reliance in terms that are at stake but there are separate doctrines to
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protect those reliance interests. i don't think you should give them and to wait in this situation and i don't think the court has given those things undue weight in the past and i direct the court to the mcdonald decision where a catalog of all the times over the years in the incorporation jurisprudence that over the past cases and i don't think any area of law with "packing my library" -- decisis over the years -- >> what about the size of the jury if we accept your argument here, how or could we draw a distinction between this case and the presidents on the size of the jury? >> williams itself would have you do that. the question is whether the feature is an indispensable feature or does the court make it an essential feature of the right to jury trial as we preface it in this country and what the court is looking at his historical sources and the
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better reading of those sources, the 12 person rule was a historical precedent so that is a holding of this court that put on the other side of the ledger from the uniform common-law authority when it comes to unanimity and that would be the decisis effect. >> williams is a problem for you. of 6 lines need to agree to convict a little offense washington the? >> the key principle is not how many but the degree of aggrieved. my core proposition to you would be a 10-numtwo verdict is less guaranteed to be accurate and is guaranteed to be constant with the purposes of the jury trial than a 6-0. >> you preface of that by saying it is a key part of the distinction? >> the very distinction. >> i'm not sure that is self apparent. would you play it out in game
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theory or something? if you ask the defendant what do you want? they have to agree across the border you want to 12 and you've got to convince -- it is not apparent to me which i would take. >> illegal answer is a practical answer. the legal answer, unanimity requires the 6 person verdict is more consistent, the only consistent outcome with the purposes of the jury trial cause. there are effective deliberations towards an accurate decision in a cross-section of the community. what happens in louisiana and oregon is a cross-section of the community by design can be left out of and canceled out of those deliberations and it is different when it comes to the way things happen in the jury room and the public confidence in that verdict and i will give you a practical answer. when louisiana was considering changing its law interchange of
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law, something i think should be taken into account when it comes to decisis when it changed its law. the prosecutor specified he used to charge felonies instead of misdemeanors because it was easier to get in-2 verdict than 6-0. >> let's say i'm not persuaded by your functionalist arguments about the tension between unanimity and numbers between this case and williams. anything else besides these functionalist arguments of great importance about unanimity and the lack of importance about numbers? >> what i would say to you is the sixth amendment understood through its purpose distinguished this case so that may explain what i mean. the text of the sixth amendment so there's a right to trial by jury so the key is what does that phrase mean? from history we know that phrase meant not just a jury but the trial by jury included
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the way the recent decision -- if we have a jerry who hangs or can't reach a verdict there is a mistrial so we don't have trial by jury. that is inherent in the term. what the court said in williams is there will be some features of common-law. imagine the doors all had to wear a particular color jacket to the court room. there will be some incidental features of the right to jury trial that don't have to be read along with the sixth amendment. certain things happen in common-law that would not be brought forward today. maybe what you are driving it to some degree is there is an argument and there was a powerful argument in williams, the 12 person requirement shouldn't be thought of that way, some thought the 12 person requirement was an important feature but others didn't. many other commentators thought it was a fanciful number,
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inherently arbitrary and doesn't mean anything. all we are getting is what is the core meaning of the phrase -- >> do you think we would have to overrule massachusetts if we overruled apodaca? that was another case in which justice powell's unusual approach to incorporation was the deciding vote in the case about a 2-tiered jury system q >> that is right. my position here would tell you if you revisit that, justice powell in that case just like in this case set up rule of law but you would have a separate 6 amendment question which the court was divided on and you consider that case on its own terms and to be perfectly candid with you i don't know what common-law would say about the jury system, it would be a different set of arguments. >> you started off and i told
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you to stop but i will give you an opportunity to do it again. what are we to make on this 404 reasoning of apodaca? what do you think the rule should be about decisis going through? do you just need a controlling rule? what is the right way to think of that? >> i will tell you what i think is what the court has done. there are times when a single vote could be accorded the decisis affect but then you have other rulings that sit on the system and the most recent time the court dealt with a situation like that was the hughes case a couple terms ago where you had a 404 vote in the prior case and we will consider this issue fresh. they did the same thing in seminole tribes with deep divisions and the court as to what the substantive meaning,
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justice souter said i did not consider this issue fresh in the previous votes that were all over the map. >> what about the decisions about its affairs in the wake of the decision, does it in a 4-1-4 decision, what is that party supposed to do. >> we won this case but can't rely on it because we don't know because it has no decisis effect it is the years go by and nothing happens -- >> in the ordinary case. subject to the ordinary principles of decisis, the one thing that makes this case unusual, a they did rely on the prior case, the defendant instead of asking for a different rule and that tells
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you something about how discredited the fifth vote is because it makes a universe of one. i haven't found any other case where somebody has come to this court and said i'm not going to make an argument based on provision of the constitution in which the previous decision rests. >> back to the math question that was alluded to. capable of doing this math, somebody could. if there is a jury pool with a certain percentage of jurors who were inclined to acquit and is there a greater likelihood of acquittal with a 6-0 verdict than a 10-2 verdict or if the state decides to have a jury that is bigger than 12, a 15-1 or a 15 person jewelry, 14-1, 19-1 and when we get to the point that the chance of
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acquittal is in favor of nonunanimous rule would that be unconstitutional? >> my rule is when the state deviates from unanimity it is unconstitutional. if the state goes beyond the number of 12, the reason why is it is a different phenomenon when somebody disagrees in the jury room. i don't mean to be presumptuous, was a difference between a 9-0 opinion and 8-1 opinion. when somebody puts reasonable good faith views on the table and requires an answer that sharpens one's thinking and leads to better results. at least in a jury -- >> you really want to argue that? you were representing a criminal defendant, it was better for us. >> perhaps there would be a number where it would be
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difficult but what i would tell you is the history and tradition of this country makes it unlikely we will see a system like that have uniformly throughout the state of feeling of 12. you talked about our math problem and it is helpful to remind the court of the decision last term and flowers talking about the math of perimeter rechallenge and you have a similar math problem here, you have one or 2 members of a minority on a jerry, it could be a racial minority or political minority religious minority. are we prepared to say they could be canceled out? >> how do we think about decisis in this case? how should we affect those? >> in a couple ways, talking how reasonable the reliance is, justifiable to look at what it is defending and more directly, how the reasoning should stand
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he didn't even consider this history. as the court has said many times like in mcdonald and rodriguez, the bill of rights against the states through the 14th amendment, history and purpose of the 14th amendment is a salient way. >> you want to make that argument? you made a big deal of it in your brief. i thought you would abandon it today but if another state were to enact the same statute louisiana has tomorrow and did it for the legitimate policy reasons that led such entities out of the american bar association's and american law institute and reputable scholars and framers with the constitution of puerto rico in people who made the rule in the united kingdom all of which allowed -- it was enacted for that is in but the statute is not constitutional and because of the origin you attribute to them.
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>> now, justice alito. let me be clear with the court. we think that purpose could inform other court decision-making and if you are looking at decisis it could inform the 14th amendment rule but we don't think it is essential to our sixth amendment argument and if the state followed the recommendation, i would be making all the other same arguments i'm making today but the thing i would leave you with before i sit down for rebuttal is it is telling that no state has ever done that. the only states that ever deviated did so under circumstances where the cross-section of the community the jury trial brings into the group and changed and part of the design was to leave part of that cross-section out of deliberation. >> you mentioned earlier in your argument where the court has said a decision is entitled to less decisis effect because
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the parties have come into court and tried to improve reasoning or so the court has said of the earlier decision. as i understood what you were saying you said this goes beyond that. could you explain why? is your argument the same thing? >> it is a step further. if you believe parties are to be entitled when there are many years between a decision and a new one to defend the old decision with the rhythms and precedent and ideas that intervened, to take a case like citizens united perhaps the government could have come in in support of that statute in that case. we have something entirely different. the state is not making a 14th amendment argument. they are asking the court to adopt a rule, the rule they are asking the court to adopt does not require unanimous verdict. five justices in apodaca rejected that argument and the court, 14 other opinions
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rejected that argument. >> it was unsettled until apodaca. the unanimity question was not settled until apodaca the four of the justices, unanimity -- was that required? >> my -- >> apodaca and the sixth vote that set the precedent requiring unanimity. >> let me say something about before apodaca, before apodaca the court squarely held an arms race in the 1940s that the sixth amendment requires a unanimous verdict. in that case it was in frugal to the holdings. what i understood before the plurality to be sang before apodaca was doing what justice white said it could do which was reconsidered precedents. i would have the 5 votes and statements where the court
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cited the decision as the law and said it settled the sixth amendment question. >> thank you. miss merrill. >> mister chief justice, may it please the court. we agree with petitioners this case presents two issues whether the sixth amendment requires unanimity and whether that requirement applies to the state. the court will decide the case in the next issue because nothing in the text, structure history where the sixth amendment requires unanimous jury verdict. nor has the court ever held the framers wholesale adopted common-law. the court expressly rejected that view were the bill of rights and in williams. the framers expressly rejected unanimity and the sixth amendment, the petitioners
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request to add back words the senate rejected in 1789. and it is not a code of criminal procedure over two centuries states have adapted their criminal justice systems to their circumstances and louisiana for the past 50 years has relied on this court's express approval of the system the challenged here today again. we have 32,000 people serving time for serious crimes and each of these convictions would be subject to challenge of apodaca is reversed. overbilling apodaca would strike at the foundation of widespread state practices that include indictment with jerry's of fewer than 12. the beauty of our system is people can change the rules so
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if they want to require unanimity they can do so. they can amend state laws and louisiana do they can amend the federal constitution. the judgment in apodaca should be affirmed. i'm happy to take questions. >> 5 justices -- apodaca, 5 votes to say the unanimity in federal trials. you are asking us to reject a rule 5 justices adhered to. >> we don't think the decision was entirely clear with regard to the rule as it would apply. the text is very clear that
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unanimity is not there and it was rejected. >> there were four justices whose unanimity was required and then there was this panel that said unanimity is required in federal trials. you are asking us to overturn that position that unanimity is required in federal trials. >> we don't believe that is central to his holding to his position and plurality opinion. the position would be, central to his plurality opinion plus four dissenters does not -- is not equal to holding. >> are we having to address this just as you seem to want us to do? that seems to me the mission we are in a proper place to take this up fresh. what do we do with those 14 cases throughout supreme court
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history that seemed to treat unanimity as part of the sixth amendment is what do we do with use, with seminole tribe and a lot of other cases and splintered decisions and the court has come back and addressed the question fresh without considering decisis and those cases? sometimes the court can't reach majority opinion, sometimes it is unable to and why doesn't the state take that risk when it relies on a decision that is so splintered? >> i think that louisiana reasonably relied on the decision of this court that nonunanimous juries were constitutional. they did that on the tail end of the decision in williams that found a 6 man jury was also constitutional.
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>> we can put that aside. we are dealing with unanimity. not saying the court did anything improper in hughes or seminole tribe by taking up the question fresh. i'm curious why it would be different here and why the state shouldn't be assigned a degree of risk assuming risk by proceeding in this area on the reliance of one member of the court's opinion that is idiosyncratic? >> for one thing i think incorporation doctrine evolved over time so i am not sure the state -- it was reasonable to expect the state to ignore a holding in a case and anticipate that that would change over time. my second response is i think you can take it up but this is a -- >> appreciate that.
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>> so you don't really want us to take that up, do you? i am sort of confused. there is a sentence in your brief it is neither party is asking the court to afford justice powell's solo opinion in apodaca presidential force. is that right that you are not asking us to afford justice powell's solo opinion presidential force because if that is right are you basically saying to me forget justice powell's opinion in apodaca, just decide what the sixth amendment requires. >> given the evolution of incorporation the area we find ourselves in a position where it is more important to get the text right and get the history right. if that means taking that issue up --
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>> i agree with justice alito, you have some strong lines interests but your reliance interests are only relevant in the context of an argument from decisis. i would like to know how your reliance interests, what argument from decisis are you making? >> we think the text and history don't include a nonunanimous jury verdict. that is constitutional, that is a choice states can make and we think the four justices plus justice powell's decision were a ruling that said was not unconstitutional to have nonunanimous jury verdict it was reasonable for us to rely on that so we don't disavow decisis. we still believe we having a miss reliance interests. >> you're relying on justice powell's opinion in apodaca. >> we are also relying -- >> decisis must be what you are relying on combined with the other four that said states
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don't have to provide unanimous juries. >> i think we are also relying on the court's opinions in williams that said the court has never adopted common-law wholesale. >> you are not urging apodaca. you want us to go back and say what the sixth amendment requires. the issue on which the court is divided. you want us to say unanimity is not required in federal trials and is not required in state trials. what is your view of the seventh amendment? does the seventh amendment require unanimity in civil trials? >> i think the seventh amendment is a different question. its text is different.
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>> the answer to my question, is unanimity required in civil trials in federal court? >> i don't believe it would be required in the seventh amendment but i don't think you need to determine that here today. >> this court has held there is a holding of the supreme court that is over 100 years old so now reliance interests for anybody there? >> my answer is specifically related to the text and what the text would require. not precedent that would apply. >> we don't count precedent in the seventh amendment but we do in justice powell's opinion. on what does it make sense that framers of the constitution would have insisted on jury trial for civil cases where property is at stake but not in
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criminal cases where liberty is at stake and lives. >> i believe the structure and the history of both ultimately on textual reach the same result. >> you don't disagree with the supreme court analysis on the seventh amendment. in what universe with the rule be different in those cases? >> i don't think that will would be different. we have to look at the text and history and when we are talking about a non-textual right think it is important the court get the history right that unanimity was rejected for a reason, that there was a specific decision to reject unanimity. it was debated. it was discussed.
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it was a known issue. >> how far are you willing to depart from unanimity, 7-5 requirement would be okay under your theory? >> i think this court has established the outer boundaries in williams. and bert. and apodaca. nine under apodaca, 9-3 is okay. i remind the court, when you see reliance on the court's decision in apodaca and johnson, at it constitutional convention the year after that was decided, expressly relied on voting rules. >> can we go back to reliance, putting aside in janice, a couple decisions for the supreme court put unions on notice that things, the
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constitutional theory was on shaky ground and you have a series of cases telling them the incorporation theory was on shaky ground but you are talking about a parade of horribles if we ride against you. what if we ruling your favorite? how do we decide what is that the essence of the common-law jury trial? would issues like having a fair cross-section of the community be in question? we have a case that say that is incorporated or the sixth amendment jury right requires a jury verdict of guilty beyond a reasonable doubt. none of those terms are in the constitution. none of those terms as far as i know were part of the discussions at the convention. i going to be open to attack now too.
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there is no history, there is no anything except our sense of what the essence of the common-law was. and not our sense but the history of what happened. >> we have the text of what made the cut after the debate over what was missing. >> we have a bunch of people who were in favor of the cuts telling everybody else. everybody understands this verdict, is the standard. we have part of the constitutional debate. hamilton himself drafted it and took out the right to a unanimous jury basically saying in the distinction it is
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self-evident to include it. you are looking at history in terms of what was taken out but in terms of the context of the discussion. >> not exclusively. the process and equal protection player, we don't have requirements anymore, only 12 white male holders so that is an example how we did not adopt common-law in all the historical terms, congress adopted the language at the time. it was not embedded in the constitution. we know there was a historical the bay, the state adopted a different and some of them wrote this rule into their own state constitution, there is -- madison thought he solve this problem and it gets rejected by the senate. >> why was it rejected? one account was it was totally
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unnecessary. everybody understood a jury trial meant unanimous agreement. we took it out because we didn't want to clutter up the constitution with unnecessary statements, the words jury trial itself means unanimous verdict. >> we did clutter it up with the word impartial and the number of other terms and the history showing states -- some of their constitutions indicate there certainly was at least a view that it should be written in by some, a fair reading to assume that that is because we all know it would be there, because they were writing a document for the future. >> assume that i think the sixth amendment requires a unanimous jury for the sake of argument. what are your best arguments for why the right is not incorporated in your best
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arguments for not overruling apodaca which opposing counsel says allow the states to do that? >> they are not good. i think we recognize this court at least at this point has taken a view of incorporation that there is no daylight so unanimity is required. i find myself in a far more difficult position. >> you have the decisis accept your giving away and i don't know what to make of that because i would think what you would do is say something like this is an outlier, there is no question that it is but it has been an outlier for 50 years, has been completely administrable, completely clear, states had every right to rely on this for 50 years.
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it doesn't matter whether it was wrong because overruling something requires more than the decision be wrong. it has been there, states have relied on it and no reason to change it. you are telling me justice powell's decision is entitled to presidential force or the decisis effect. i don't know what to do with that effect. >> i agree with everything you said about the reasons why this court should confirm apodaca and be given the decisis affect. justice powell's decision doesn't seem to be the view of the court and the text and the history, we strongly and firmly believe are on our side. >> you are not the only state who has an interest. there is only one state going
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forward at this moment that has an interest in this and that is oregon and oregon might change its ruler might not change its rule but oregon filed a brief and doesn't make the argument you're making. the argument says it should be made clear what this briefed is not do. it does not address the merits of whether apodaca was directly decided. >> oregon find itself in a position where the democratic process has stalled in anticipation of this decision. they have written a brief that expressly emphasizes all our lines interests. puerto rico has similar interests, and the constitution application, they have similar interests too. we think reliance interests are very important and the judgment was correct. >> it is certainly true that we in recent years have rejected the two track idea of
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incorporation but a crazy argument as recently as mcdonald, there were voices on this court making that argument with respect to the second amendment and earlier it was a respectable argument. it hasn't won the day completely but that is what apodaca rests on. >> if you are telling me that there is a little bit of daylight then i will take it. but i also believe the history shows that unanimity was rejected and that is the correct view. we are not entirely repudiating the apodaca judgments and we do have 50 years of reliance which is why i emphasized we have 32,000 people who are incarcerated at labor for serious crimes and every one of them would be able to file an
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appeal. >> unanimous? i can't -- i don't understand how to apply people who are unanimously convicted but the stronger case would be people convicted by juries that were not unanimous and how many of those either? >> we don't know. >> with all the work in this, has anybody got a rough idea what percentage of those people who are convicted are convicted by nonunanimous juries? >> there is no reliable data. >> i think if there had been some data even if you just take a sample, you would be telling us and the fact that you are telling us there are a lot of people in jail which i didn't know, that it suggests something. >> that you say there is you, there is oregon that they are
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waiting. puerto rico is a tough case, a hispanic tradition. and i don't know. you might have to bring of the insular cases. you might have to revise them. you might get into the status question. puerto rico is worrying me. is there something you want to say about that? >> we have the same tradition. >> the same tradition but don't have the full system of trials that grows out of a simple tradition. >> that is why -- >> that wasn't -- i got that. i want to know since you looked into puerto rico, is there a particular problem if we overturn apodaca? >> i believe there is. >> i know you believe there is but i want to know what there is rather than making it up.
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>> the territorial decisions were based on the authority of congress to write laws that were different for territories, not withstanding that they came under the protection of the constitution i think there is a problem. the issue here is the sixth amendment requires unanimity. unless you continue a special carveout for the territories they have the same question. >> is the reason you don't do it because the jury is not typically told? >> because it is not always polled and the responsibility of the defense to do that and in some cases where it may have been or may not have been recorded or captive so the case files are inconsistent on this. we are already receiving a flood of these cases as is this court. we saw 25 briefs in the supreme court this last friday.
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this is certainly unsettling but a number of those people pleaded guilty based on expectation, the criminal defense attorneys filing amicus brief filing that point and people received every -- everyone that went to trial received this jury instruction. we are not saying they all win. we are saying every one of them could file. >> i got the related point. if i believe contrary to what you say i assumed i believe that in fact the federal right in the constitution does include unanimity in the sixth amendment, and i think it was fairly clear in the law, the same federal rules apply to states but you do have a point
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if you say there are anomalies and we should leave the anomaly alone and that is where you bring in your reason, the reason being 32,000 people etc.. i got that structure. is there any other instance you can think of where despite a contradiction which you are allowing under my assumptions remain a legal contradiction, the court says okay, let sleeping dogs lie. otherwise we get serious harm. >> just a quick note. teague and the other doctrine is your adversary talked about. >> i think one of the significant lies of jurisprudence that comes to
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mind is roe. i hesitate to bring that into this but i do think that is the area and anytime you have a non-textual right that the court has relied on related to in passing or quoted in passing over time and changed incorporation doctrine, it is that much more important to get the text and history right. we think apodaca, the judgment in apodaca was correct. we have enormous interests. >> we should worry about the 32,000 people in prison, one might wonder whether we should worry about their interests under the sixth amendment as well. i can't help but wonder, should we forever ensconced an incorrect view of the united states constitution for perpetuity for all state and all people denying them a right
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we believe was originally given to the because of 32,000 criminal convictions in louisiana? >> now, justice gore such but we don't believe it was a right there was given to them in the sixth amendment. >> i understand that. i'm talking about the reliance i. .. instead of retroactively. that's a confirm for us. >> the case of retroactivity to
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convictions that are already final is not before us. it would come before us in the case if you -- that is not a question that we can properly address here. has it been briefed it hasn't been decided below. >> we certainly do appreciate you not addressing that issue without our opportunity to break it. i would point out our law that we just passed makes the law, it does draw a line and says it will apply to all crime, apply to crimes that were committed after january 1, 2019. so to some extent we are talking about at least some retroactivity because we've already made a decision to trust it going forward.
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>> assume that the sixth amendment requires unanimity. i know you disagree. assume our law ordinary requires incorporation against the states of rights that a plot against the federal government. so assume ordinarily it would be incorporated. then we get to the apodaca question. it seems to me there are two practical arguments for overruling apodaca if you accept its holding. one is there are defendants have been convicted and sentenced to life, ten-two or 11-one, who otherwise would it not been convicted. that seems like a serious issue for us to think about in terms of overruling. the second is that the rule in question is rooted in racism, rooted in a desire apparently to diminish the voices of black jurors in the late 1890s. that doesn't go to the sixth amendment.
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that goes to the stare decisis angle. do either of those two things, or i guess i should say why are not those things enough to overrule if you accept the legal premises, which i know you don't, but if you accept those why are those enough? again, unfairness to defendants and rooted in racism. >> as to the first question with regard unfairness to defend its i did not see a conservative sunday six man jury that was approved in williams, which is a six man jury for all crimes less than capital, and granted unanimous rule but still only six and louisiana's rule to requires ten. i don't think it's fun mode unfair nor do i think this court in any president has ever held that it is. >> williams held the number of jurors was not at the heart of the jury trial, right? the court said it was a
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historical accident. it resembled certain biblical references like 12 apostles, 12 tribes of israel. there was nothing inevitable about the number 12 but there was about the requirement that whatever the number is, they all agree. >> mr. chief justice? >> you may respond. >> justice ginsburg, i think it was not an historical accident. i would disagree with that description. these two things were married together in every description, the number 12 and unanimous in every description, have always been married together. >> it's hard to disagree when williams described the number 12 as a historical accident. did you just say williams was wrong in that respect? >> i think that characterization of it was dismissive. that's all. thank you. >> thank thank you, counsel. five minutes, mr. fisher.
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>> thank you. i like to make a couple of quick factual point in the talk about stare decisis and reliance. justice breyer, you asked about numbers and facts. we say in a reply brief use one of the states own filings that there are 36 cases on direct review in louisiana where this issue has been presented. even within that 36 you going to have arguments about whether it was adequately preserved and all the rest. we think at least in the direct review level the numbers are quite modest and will. as the court described throughout the last of the argument, retroactivity questions can be left for another day and covered by their own reliance doctors. he also asked about puerto rico. in footnote ten we note the court held the right to jury trial to start a play the same way in put a request to. that would be a question about the insular cases. it's something this case does it best to address.
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as to stare decisis and reliance, let me make a couple points about the framing of the arguments and talk about, justice kagan, your alternative frame of the arguments. as to the states framing its helpful to remember why would stare decisis in first place. it's not so expectations in the law. what we're asking you today to do are to be from two things the korda said over the years but when is the sixth amendment requires unanimous verdict. second, when in a corporate provision applies to the states that applies the same as it does to the federal government. to write that opinion right to do is read from what you said many, many times under the law. it is the state position that would create a people as to the law, it would raise questions liked one of the chief justice asked about whether 75 is okay. the state that i doesn't answer the question, it provides no way to answer the question. that would be one of many questions that would arise. you are left with alternative argument, what about putting a reliance interest into apodaca
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itself? i'm not sure that oregon does that. it's telling oregon is that willing to defend. i know it doesn't go the other way like the state does but it is willing to defend the reasoning in apodaca. let's imagine that argument when foot of the court. there are three reasons why he was still overrule apodaca. the first is one a couple of you mention which is it's not just interest of the state that has been taken into counter it's the interest of defendants. the pulley take away somebody's liberty over six integers of common law tradition, and asked a tradition as we demand the unanimous verdict, unanimous consent of a cross-section of the kennedy. that is important for accuracy, public confidence and all the rest. those reliance interest which by the way the state itself is not renouncing unanimous verdicts. it maintains the ability is a lot to try anyone going four for a crime committed before januar.
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that could go on for years and that ought to be taken into account. secondly, incorporation is different. that's the lesson of the suite of this court's cases is reliance interest are less important because the bill of rights themselves are so important. when the court says something is a fundamental rule under our way of doing criminal justice, the states have to fall that will the same way as the federal government. the last thing that makes this case different than an ordinary stare decisis case is the boat in apodaca. it's not just it was a four-one-four vote but it's the other eight justices rejected the decisive racing in that case. if i i could push it even furtr i would say if you have any doubts look at justice powell's reasoning. justice powell's reasoning itself was based on a refusal to follow precedent. what he said was i'm agreeing with the past the centers to i this rule from five views ago that requires the same standards to apply in a federal court as
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they apply in -- in state court as a play federal court. he didn't type to disagree the court old holding. in a sense apodaca itself is born of a disregard for stare decisis. this case is almost singular in its, the compelling reasons right now to overrule apodaca. >> since you mention balzac, can ask a question about that could imagine this is assigned in your favor and then a defendant who has been convicted on and on unanimous verdict in puerto rico comes here and says, i'm a citizen of the united states, and the only reason why i was able to be convicted a nonunanimous verdict are these old insular cases that reflect attitudes of the day in the aftermath of the spanish-american war, and just as you brushed aside apodaca, you should brush aside the insular cases.
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>> i would say that would be different for all the reasons i just outlined. the insular cases where a majority decision from the court. they were based on a view that has not been disregarded or left behind in the courts jurisprudence. there may be arguments party can make an ordinary stare decisis principles but the last point i would leave you with is this is not an ordinary stare decisis case. >> thank you, counsel. the case is submitted. >> commerce secretary wilbur ross and other policy experts are expected to discuss the administration straight policy agenda. you can see live coverage starting at 12:30 p.m. eastern on c-span2. on c-span today, a speech at the jamestown foundations china defense and security conference. you can see that live at 12:45 p.m. eastern on c-span, also online at or listen at or listen to live with the free c-span radio app.
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congress is back today from its two-week district and state work. period house members will vote on legislation curbing the outsourcing of u.s. jobs while requiring publicly traded companies to disclose where the workers are located i state and country. members will debate legislation in support of human rights in hong kong and those recent protests. over in the senate floor votes are planned on air force secretary nominee barbara barrett and so we just district court nominations. live coverage of the house today at 2 p.m. eastern on c-span, and the senate here at 3 p.m. eastern on c-span2. >> c-span and the polling firm it sows conducted a survey on americans attitudes towards voting and elections. we asked how committed the political party or to making sure elections india's are fair and accurate. voters attitudes toward republicans are split nearly down the middle with 49% believing the gop is committed and 50% believing they are not.
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meanwhile 61% of americans think democrats are committed to fair and accurate elections, and 8% disagree. why the discrepancy? it's largely due to those identified as independents. 48% of those believe the republican party has a commitment to fair and accurate elections while 60% of self-identified independently the saint of the democratic party. we asked how much trust in confidence voters have it was of the american people it comes to making choices on election day. only 46% of voters had either a great deal of fair amount of confidence in the fellow americans decisions. look at the parts break out among the answers only republican show a majority on the question. you can put all of the results including whether american steak states and localities with a history of voter discrimination should be able to decide their own election processes at >> patrick eddington at our table thisgt morning, ,


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