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In addition to run-of-the-mill misconduct, our blog often draws attention to cases in which prosecutors make questionable claims. It happens with surprising regularity; it turns out that prosecutors are often willing to take seemingly indefensible positions if it means they can lock in a conviction or stand between a defendant and the prospect of a new trial. But, sometimes it still takes guts to mislead the judiciary, particularly when the justices in question sit on the highest court in the land. That is why it’s remarkable to see some claims made by Oregon and Louisiana in Ramos v. Louisiana, a case that will be argued at the U.S. Supreme Court next Monday afternoon.

The legal question presented in Ramos is straightforward: does the Constitution guarantee a criminal defendant’s right to a unanimous jury. We have written before about how Oregon and Louisiana were the only two jurisdictions that permitted felony convictions in cases in which the jury did not unanimously agree that the defendant was guilty beyond a reasonable doubt. This changed when Louisiana voters adopted a constitutional amendment last year to require unanimity in all trials beginning on January 1 of 2019, leaving Oregon behind as the only current non-unanimity jurisdiction. For them, 10 out of 12 jurors was enough. In our previous post on the issue, we noted the policy’s racist origins, explicitly rooted in white supremacy in Louisiana and anti-Semitism in Oregon, and how non-unanimous juries systemically disenfranchise non-white voters. Another thing we noted non-unanimous juries do, which may explain why state officials defend them, is aggrandize prosecutorial power, “mak[ing] obtaining convictions easier.”

As we see time and time again, prosecutors do not give up power without throwing around every conceivable argument, no matter how ill-supported or misleading. At bottom, Oregon and Louisiana have basically made a naked plea to the Supreme Court: please do not rule against us because a decision in Mr. Ramos’s favor will make things more complicated for us. How much more complicated? Well, in trying to play on the judicial “fear of too much justice,” the states have tossed around some interesting figures and arguments:       

  • In its amicus brief, the State of Oregon writes (on page 2) “[a] ruling in this case that the Sixth Amendment requires unanimity in state prosecutions will overturn hundreds if not thousands of past convictions . . . .” It goes further (on pages 11-12): “Such a ruling would automatically require retrial in many hundreds, if not thousands of cases on direct review.”
  • In its brief, which is a little more careful, the State of Louisiana writes (on page 49): “a mandatory unanimity rule will have serious consequences for post-conviction review. Thousands of final convictions in Louisiana and Oregon could be upset if such a new rule were later declared retroactive. Indeed, even the Court’s grant of certiorari in this case has already prompted some petitioners to seek habeas review on this ground, arguing for the retroactive application of a rule not yet decided—and claiming ineffective assistance of counsel for not challenging non-unanimous convictions notwithstanding controlling precedent. Of course, Louisiana would argue against retroactive application of a new unanimous-jury rule. Win or lose, though, the flood of motions has already begun, and the burden on the court system will be severe.

Briefly setting aside the best response to these arguments—the fact that Oregon and Louisiana have deprived so many people of their constitutional rights is a reason to grant relief to Ramos not sustain that system—let us entertain them on their terms. Let’s begin with the numbers. Oregon goes straight to the “hundreds or thousands” claim. Does it provide any proof whatsoever to support this proposition? The brief contains no appendix, no lengthy footnote with one, two, a dozen, or even a hundred cases cited, no reference to any other source that could corroborate the figure. Is the claim even worthy of belief, or is it just a transparent effort to fear-monger?

Reporters have asked the Oregon Attorney General’s office for details about these cases, specifically those that are not final and therefore that could be directly impacted by the outcome in Ramos. The response that has emerged is a list of 292 case names and numbers dropped into an Excel spreadsheet. That number appears well short of one thousand, let alone many thousand. The brief’s numerical claim appears overblown by any measure.

Moreover, scratching the surface of those cases makes a sizable percentage disappear into dust. Get this: many of the cases actually had a unanimous verdict. Several others lacked any jury polling, meaning there is no case-specific record indicating whether the jury was unanimous or not. And, the list includes cases in which the defense lawyer failed to object to non-unanimity, thereby waiving the issue. All of these realities suggest that 292 is a turbo-charged, high-end “estimate” (to put it charitably). The Oregon AG, Ellen Rosenblum, better hope that nobody ever audits her office. The utter failure to substantiate its claim in its brief is crass on its own. But, it is truly audacious to then circulate a spreadsheet that contains only a fraction of the claimed number of potentially-effected cases and includes cases that will almost certainly fail to result in relief even if Ramos prevails.

By comparison, the State of Louisiana’s submission looks reasonable. At least it more honestly frames the number of convictions at stake by invoking the theoretical possibility of retroactive application. What court-followers know is that retroactivity is not at issue right now. Because Mr. Ramos’s case is on direct appeal, the U.S. Supreme Court does not need to decide whether cases that are already final (meaning they have already completed direct review) will be implicated by its decision. The Court’s practice is to decide retroactivity only when retroactivity is actually at issue. Any lawyer who has tried to understand the Supreme Court’s retroactivity doctrine would also tell you that it is a stretch to predict whether a favorable Ramos ruling would ever be made retroactively applicable. Most rights do not achieve that status. Moreover, in addition to questions of retroactivity, every defendant will have to navigate high procedural hurdles to get into court: did their lawyer object? Was the jury polled? Did the appellate lawyer raise the claim? Did he raise it correctly? Even as the Attorney General decries the possibility of relief for hundreds, his staff is vigorously raising procedural bars to prevent litigants from getting relief.

While its Ramos brief showed some restraint, the Louisiana Attorney General, Jeff Landry, has been out in public making arguments that echo the claims the Oregon Attorney General submitted. In one interview, he said, “There are thousands of people who had been convicted in Louisiana under a system that had previously been upheld by the Supreme Court . . . . You would basically have to retry all these cases, for which witnesses may be gone and people involved may be deceased. It’s problematic.” If we are talking about cases that will be directly implicated by Ramos, he is as wrong as the State of Oregon. Indeed, in a Motion for Expedited Review that the Attorney General’s office helped prepared in the case of Valentino Hodge, the State attached an exhibit which was called the “Non-unanimous Jury Dashboard.” As of the date on the top of the filing, July 16, 2019, the document had fewer than 70 cases listed. So much for the floodgates.

The potential numbers of cases directly affected should also be understood in the context of the criminal justice system. Louisiana, long a worldwide leader in incarceration, puts plenty of resources behind the prosecutors. The Louisiana Supreme Court’s 2018 Annual Report notes that there were 145,931 felony cases in 2017, but only 436 criminal trials in total. In some districts, there were no criminal trials at all. In more than half the districts, there were less than 10 trials in the entire year. There are 42 elected District Attorneys and 579 Assistant District Attorneys in Louisiana. Even in the three districts that have the most trials, the State provides funding for more Assistant District Attorneys than there are actual trials in the districts. Orleans Parish, which had the most trials in 2017, has more Assistant District Attorneys (at least 83) than trials (70), as does Jefferson Parish (at least 52 ADAs, 41 criminal trials), and East Baton Rouge (at least 48 ADAs, 35 criminal trials). Even taking the State’s high estimates, the Attorney General is effectively complaining about an extra case per ADA. The State has already constructed a machine that produces and maintains mass incarceration; the idea that a ruling favorable to Mr. Ramos would somehow break it is far-fetched.   

Not only does the States’ puffery in Ramos prove the AGs to be credibility-challenged, but it also raises a deeper question: do the state prosecutors think the prospect of upsetting a few dozen or even a few hundred convictions should alter the way the justices interpret the Constitution? While the aging decision in McCleskey v. Kemp may support that cynical view, one can hope for something better. Like rationality. Better yet, accountability. Prosecutors should be held to account for the unsubstantiated and misleading claims that they make.

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