Non-unanimous Juries and Prior Cases

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.”

There are two primary rules that limit the number of cases that will have to be retried. The basic rule on retroactivity is that a new rule of constitutional criminal procedure (as distinguished from substantive criminal law)  is retroactive to those cases still pending in the direct appeal process but not to those where direct appeal has been concluded. The latter includes those that still have a collateral attack pending, i.e., habeas corpus or some other equivalent procedure.

The other main rule involved here is the procedural default rule. I sometimes call this the “speak now or forever hold your peace” rule. If a defendant does not raise an objection at the time and in the proceeding that the state has provided for raising that kind of objection, the courts generally will not hear it later, although there are exceptions.

From the case names, it appears that the cases sent back today are all direct appeals. The respondents are the States of Louisiana or Oregon. In collateral reviews, the respondent is typically the warden of the prison.

Justice Alito’s note invokes the procedural default rule. Did the defendant preserve the objection in the manner required by state procedure? If not, the state courts may deny relief and, if they do, the federal courts will mostly respect that. Again, there are exceptions, the most compelling of which is demonstrable actual innocence. That fact that Supreme Court precedent at the time of trial approved non-unanimous juries will probably not be considered good cause for default. That precedent has been under attack for some time, and the Court’s giving it the heave-ho was entirely foreseeable.

These issues must be determined case-by-case, and that is what Justice Alito’s note is about.

In other action, the Supreme Court announced opinions in two civil cases and dumped the New York gun case as moot. Amy Howe has this discussion of the New York case.