Category: Jury Trials

Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part I, Overruling Apodaca

by · Dec 11, 2020 5:10 pm

On December 2, the U.S. Supreme Court held oral argument in Edwards v. Vannoy, No. 19-5807, on an easy question with an obvious answer. Is the Court’s decision last term in Ramos v. Louisiana, that unanimous juries are required in state criminal cases, retroactive to cases already final on direct appeal under the rule in Teague v. Lane? As noted in the Justice Kavanaugh’s opinion in Ramos itself, the answer is clearly “no.” See this post.

Yet from the argument the Court seems to have unexpected difficulty with this easy question. In a series of posts, I will go through some of the questions the Justices had at the argument and offer my answers. Continue reading . . .

The Danger of Introducing New Factual Claims at the Supreme Court Level

by · Dec 3, 2020 3:13 pm

Yesterday, the U.S. Supreme Court heard oral argument in Edwards v. Vannoy, No. 19-5807, on the retroactivity of the unanimous jury requirement of Ramos v. Louisiana. See this post from the day the Court took up the case. I will have much more to say on the law of retroactivity in a later post, but for now I want to call attention to an alarming practice that the Supreme Court should squash — introducing new factual claims at the Supreme Court level with no realistic opportunity for the other side to challenge them. Continue reading . . .

Judicial Sentencing in Capital Cases

by · Nov 23, 2020 11:30 am

Should sentencing in capital cases be decided by the judge or the jury? Since 1976, the Supreme Court has decided that a two-step process is required: (1) narrow the group of murderers eligible for capital punishment by finding some reasonably objective fact, and (2) decide on what the punishment is just after considering whatever aggravating factors state law specifies and practically everything the defendant wants to submit in mitigation.

Since 2002, the Court has held that the defendant has a right to a jury for step (1). However, since 1976, the Supreme Court has consistently held that step (2) may be decided by the trial judge, a panel of judges, the jury, or the judge after an advisory verdict by the jury, whichever the state chooses.  It reaffirmed that rule earlier this year in McKinney v. Arizona. See this post.

Today the Court turned down yet another attempt to toss out 44 years of solidly established precedent in McMillan v. Alabama, No. 20-193. Continue reading . . .

Bogus “Study” on Bias in Jury Selection

by · Jun 26, 2020 2:03 pm

A recent study from The Death Penalty Clinic (read Anti-Death Penalty Clinic) at Berkeley Law, headed by long-time defense attorney Elisabeth Semel, has found that “California prosecutors routinely strike Black and Latino people from juries,” according to the Los Angeles Times. A piece by Michele Hanisee, of the Association of Los Angeles Deputy District Attorneys,  raises serious questions about the accuracy of the study and the bias of its author. Ms. Semel’s study, entitled “Whitewashing the Jury Box,”  examined 683 appellate rulings between 2006-2018 in non-death penalty cases where defense attorneys objected to a prosecutor’s  peremptory challenge of a juror.

Continue reading . . .

A New Slant on Jury Nullification

by · Jun 15, 2020 5:57 am

Jury nullification is the theory that a jury should be able to render a verdict it believes is just notwithstanding what the law and the facts of the case may require.  Most often, jury nullification is pushed by libertarians in the context of drug prosecutions.  Under libertarian theory, drugs should be legal, and obstinate legislative refusal to repeal drug laws should be nullified by juries’ refusal to convict defendants in drug cases.  An offshoot of the same theory is that juries should acquit because, even if drug laws are arguably acceptable in some circumstances, the punishments, particularly mandatory minimum sentences, are so wildly excessive that a justice-oriented jury should prevent their imposition.

There are numerous problems with nullification theory. Continue reading . . .

Ramos Retroactivity

by · May 4, 2020 8:04 am

The U.S. Supreme Court moved swiftly today to resolve the question of whether its April 20 decision on nonunanimous juries applies retroactively to cases on federal habeas corpus. The correct answer is clearly “no.” Continue reading . . .

Non-unanimous Juries and Prior Cases

by · Apr 27, 2020 7:42 am

Whenever the Supreme Court makes a significant change in the law — as it did last week when it overruled its prior approval of nonunanimous juries in state criminal cases, see this post — the question arises of what to do about cases that have already been tried under the old rule.

Today the high court sent back a bunch of cases from Louisiana and Oregon for reconsideration in light of the Ramos case. Justice Alito noted, “I concur in the judgment on the understanding that the Court is not deciding or expressing a view on whether the question was properly raised below but is instead leaving that question to be decided on remand.” Continue reading . . .

Splintered High Court Requires Unanimous Juries

by · Apr 20, 2020 5:24 pm

All but two states require juries to be unanimous in serious criminal cases, and one of those states has already amended its constitution to require unanimity going forward. In a pair of cases nearly half a century ago, Apodaca v. Oregon and Johnson v. Louisana, the Court upheld these two state’s non-unanimous jury laws by a 5-4 vote, but the 5 could not agree on a single rationale.

Today in Ramos v. Louisiana, No. 18-5924, the Court decided otherwise by a 6-3 vote. Part of Justice Gorsuch’s opinion is joined by four other Justices, making it the opinion of the Court, and part is not. The divisions over precedent strike me as more interesting than the divisions over jury trial. Continue reading . . .