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Supreme Court Weighs Whether All Non-Unanimous Jury Verdicts Are Unconstitutional

Is a non-unanimous jury verdict in a criminal case ever constitutional?

Just months ago, the Supreme Court ruled for the first time that such verdicts violate the Sixth Amendment's right to a jury trial. But the 6-3 decision applied only to future cases. The justices, apparently divided at the time over whether the decision should apply to past cases, left that question for another day.

On Wednesday that day arrived, as the justices debated whether last April's new constitutional rule should apply to, potentially, several thousand prisoners in Louisiana and Oregon, convicted in the past by non-unanimous juries. The states were the only ones that allowed such verdicts prior to the court's decision in April.

Thedrick Edwards is one of about 1,600 people still in prison in Louisiana, prisoners convicted by non-unanimous juries. Edwards, a Black man, was charged with multiple violent crimes — armed robbery, rape and kidnapping. At the time of his arrest, the 19-year-old had no prior criminal record, and neither of the two rape victims could identify their attacker. After searching Edwards' home, officers could not find anything to connect him to the crimes. But he ultimately confessed — he claimed under duress — and his confession was admitted as evidence.

At his trial in 2007, the prosecution used 10 of its 11 strikes to eliminate all but one Black person from the jury. That lone Black juror voted to acquit Edwards on all charges, but the other jurors voted to convict, and the non-unanimous verdict was upheld by the lower courts.

At Wednesday's argument, lawyers for Edwards told the Supreme Court that he is entitled to a new trial in light of the decision this past April declaring such verdicts unconstitutional.

At the heart of the argument was a 1989 decision, Teague v. Lane, that said when the court announces a new constitutional rule, it applies retroactively only if it is a "watershed" rule that implicates the fundamental fairness of the criminal proceeding.

Justice Stephen Breyer seemed to think the new unanimous jury rule qualifies as watershed, asking, "Why isn't it basic?"

Justice Elena Kagan, who was among the three dissenters in the the April case — Ramos v. Louisiana — seemed to agree that the new rule is now binding not just on future cases, but on past ones, too.

"Ramos says that if you haven't been convicted by a unanimous jury, you really haven't been convicted at all," she said. "And so how could it be that a rule like that does not have retroactive effect?"

Justice Clarence Thomas pointed to Louisiana's racial motivation for enacting the non-unanimous verdict law — in particular that the law was aimed at eliminating the impact of one or two Black people serving on a jury.

"What role do you think that the sordid roots of the non-unanimous jury rule in Louisiana should play in our analysis?" Thomas asked.

Lawyers for Louisiana and for the Trump administration maintained that those racial roots should not be "dispositive."

But Justice Brett Kavanaugh, who in April said that the new rule should not be retroactive, seemed disturbed Wednesday by the way the law operated when combined with race discrimination in jury selection.

"This case seems like a classic example of what we were concerned about," he said. "The facts of this case certainly seem troubling on how it all played out."

Justice Neil Gorsuch made clear his view in April: Any non-unanimous jury verdict, he said, is unconstitutional. On Wednesday, he reiterated that view, saying that the promise of the courts 1989 decision was that a watershed ruling that implicates the fairness of a criminal proceeding should apply retroactively.

And yet, as he observed, since 1989, the court hasn't done that since then.

"We haven't found a single one," he observed.

"Is this a false promise?" he asked. "Should we just admit it's a false promise?" And "if it isn't a false promise, then what counts [as a watershed rule]?."

"Who are we kidding?" he asked caustically.

None of the lawyers who argued the case Wednesday could confirm the actual number of current prisoners that would be affected if the Supreme Court makes the unanimous jury ruling retroactive. The Louisiana Association of Criminal Defense Lawyers and other groups have documented that it would affect at least 955 prisoners who were convicted by non-unanimous juries, and they speculate that it could affect another 646 past cases in which there is not yet documented proof of a split verdict.

A decision in the case is expected later in the term.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.