In Edwards v. Vannoy, the U.S. Supreme Court held that a prisoner may not invoke the denial of his Sixth Amendment right to a unanimous jury as a basis for challenging his criminal conviction when filing a federal habeas corpus petition. This means that in Louisiana and Oregon, the two states that previously allowed nonunanimous juries to convict, any final, nonunanimous jury convictions will remain in effect, undisturbed by the Court’s recent holding in Ramos v. Louisiana. The ruling that Ramos will not apply retroactively on habeas is no doubt, a disappointment to people who had hoped to bring collateral challenges and try their luck at a second trial.
In this column, I will consider something a bit different from whether Ramos announced a watershed new rule for purposes of Teague v. Lane, the question that faced the Supreme Court in Edwards. I will look instead at how much of a burden retroactivity would have imposed if the case had come out the other way. To the extent that one wants to perform a cost/benefit analysis of retroactivity, it is useful to observe how Ramos, applied retroactively, would differ from another right applying retroactively.
The Right to a Unanimous Jury
The decision in Ramos was going to be more or less irrelevant to all but two states because every state but Louisiana and Oregon had already decided to adopt a unanimity requirement for criminal jury trials. In fact, Louisiana also switched to unanimous juries but did so prospectively rather than retroactively. One kind of retroactivity refers to the application of the new rule of law to cases in which a jury has already come back with a guilty verdict under the old rule but in which the conviction has not yet become final. Convictions become final when the defendant uses up his direct appeals, and either the U.S. Supreme Court denies certiorari or the defendant fails to petition for the writ.
Here’s a schematic illustration. Say an 11-1 jury convicts Joe Blow of aggravated assault, and Blow has challenged his conviction in the intermediate state court of appeals by the time the Supreme Court decides Ramos. Joe Blow can assert his newly announced constitutional right to a unanimous jury and accordingly demand a whole new trial at which the judge will instruct the jury that it needs every juror’s vote of guilt beyond a reasonable doubt to convict Blow of aggravated assault. The right is retroactive in this sense, so long as his conviction has yet to become final.
What about after the conviction is final? At that point, the question is whether the right is retroactive on habeas corpus, a fancy Latin name for challenging a person’s confinement under federal law. Technically a civil proceeding, habeas corpus allows a narrow band of state prisoners to challenge their confinement even though their convictions have already become final. Under the approach adopted first by a plurality in the 1989 Teague decision and later accepted by the full Court, new rules applied on habeas corpus if they announced a new substantive rule of law (for example, that the conduct punished by the statute is constitutionally protected) or if they recognized a watershed procedural rule. As it turned out, though, the Court has acknowledged almost no new rules that were “watershed” enough to apply retroactively on habeas corpus, and the Justices eliminated the watershed exception altogether in Edwards.
Would Retroactivity on Habeas Have Been All That Costly?
Imagine a different right for a moment, the right to receive warnings before facing questioning in custody. Assume that defendant James Garville is arrested without Miranda warnings and answers an officer’s questions. The government prosecutes Garville for armed robbery and introduces into evidence the answers that Garville gave to the arresting officer. Garville is convicted and sentenced to five years’ imprisonment. After his conviction becomes final, the Supreme Court in Miranda v. Arizona announces the right to receive warnings prior to custodial interrogation. If the right in question were retroactive on habeas corpus, then Garville would be entitled to a whole new trial at which any statements he gave in response to non-Mirandized custodial interrogation would be inadmissible.
Having to try Garville again without his self-incriminating statements would certainly be costly and not just because the government would have to compensate in some way at the second trial for the loss of the statements that Garville gave the police. That cost is entailed in the Court’s holding that non-Mirandized statements are inadmissible. In other words, that cost is the product of the decision rather than of the fact that the decision applies retroactively. Even if Garville had yet to stand trial, Miranda would stop the government from introducing any non-Mirandized statements against Garville.
If the case is retroactive on habeas, however, then the attorney would have to repeat other aspects of the trial that were proper and fair, and that cost would be a product of retroactivity rather than of the right itself. Stated differently, had the government known ahead of time that it could not use non-Mirandized statements against Garville, it would have either given the suspect warnings after taking him into custody or put on a case without relying on the suspect’s statements, thereby avoiding the costs of having to introduce all of the other evidence all over again, from examining witnesses and presenting exhibits to offering closing statements and otherwise conducting the state’s side of the trial. It makes a difference in the case of Miranda rights to learn of the right before the trial has taken place rather than after the trial is over.
If a lot of time has passed, of course, the government incurs additional costs when a decision is retroactive. Witnesses may not remember what they recalled closer to the date of the crime, and some witnesses might have moved away, passed away, or otherwise become more difficult to access. For victim-witnesses, the passage of time may mean that they have put the events of the crimes behind them and could find it freshly traumatic to have to relive in open court the violence that they experienced. Justice Kavanaugh spoke of this cost in particular in his opinion for the Court, noting that “[e]ven when the evidence can be reassembled, conducting retrials years later inflicts substantial pain on crime victims who must testify again and endure new trials. In this case, the victims of the robberies, kidnappings, and rapes would have to relive their trauma and testify again, 15 years after the crimes occurred.” Justice Kavanaugh seems to recognize the trauma of those having to relive a sexual assault years after the crime.
Now compare Garville to Joe Blow, and imagine that Blow’s conviction has become final. In the case of Joe Blow, if the jury had convicted him by a vote of 12-0, then he would have received exactly what the Ramos case guaranteed him: conviction by a unanimous jury. He would not be entitled to a new trial. If, on the other hand, the jury had convicted him by a vote of 11-1, then it would be the failure of the jury to come to a unanimous verdict—and not the retroactivity of Ramos’s application—that would impose the cost of a new trial. In other words, even if the attorneys knew from the very beginning that conviction required a unanimous jury, we have no reason to doubt that the verdict would still have been 11-1 and Blow would therefore still be entitled to a new trial. It is the right and not its retroactivity that leads to a new trial.
The difference is subtle but important. If the judge and attorneys conduct a trial to the best of their ability but fail to do something that they had no idea they needed to do, then having to retry the case, whether as a result of a direct appeal or because of a habeas petition, feels like a tremendous imposition. If we had known that all testimonial hearsay against the defendant violated the Sixth Amendment, we would have kept it out of evidence. Now we have to retry the entire case, including putting on evidence that we put on perfectly well the first time. It is like having to re-bake an entire cake because we did not realize that one of our guests would be allergic to vanilla. It would have been so much easier to leave out the teaspoon of vanilla if we had only known.
The jury’s vote, by contrast, is not under the control of the attorneys and the judge. The prosecutor would presumably do the same things that they did in the first trial against Joe Blow if they had it to do over again, and they would just hope that the jury came back with a unanimous conviction. In other words, telling us that the jury must be unanimous does not necessarily alter our actions; it simply directs the outcome differently based on the same actions. An 11-1 vote is no longer enough, but the vote remains outside of the attorneys’ and judge’s control. It is not as though the prosecution was presenting a weaker case in the expectation that she needed only 10 or 11 votes but would now step up her game. Though lawyers might theoretically do some things differently when facing a unanimity requirement, there is no systematic way in which attorneys would have conducted a trial if only they had known in advance that they needed 12/12 and not 11/12 or 10/12 votes for a conviction.
There are, of course, other reasons for limiting retroactivity of new rulings to direct appeal. If a lot of time passes, witnesses do die or forget, and physical exhibits degrade and get misplaced. And while federal law generally imposes a one-year statute of limitations for habeas claims, it makes an exception for new rules made retroactive on habeas. For petitions asserting those novel grounds for relief, the one year starts to run when the Supreme Court announces the new rule, not when the petitioner’s conviction became final. Thus, retroactivity on habeas can impose a high cost in some cases.
Yet retroactivity does not always exact that much of a cost. If a retrial takes place within a relatively short time after the first trial that preceded it, the new requirement for jury unanimity would impose no more of a burden when announced retroactively (requiring a new trial if the verdict was less than unanimous) than it would when announced before the trial that ended in an 11-1 verdict was about to begin. If cost/benefit analysis played a role in determining retroactivity, then perhaps Edwards would properly have come out the other way.