The Supreme Court finishes up this week’s hearings with a single, one-hour review of an important issue on the constitutional rule that juries must vote unanimously in order to convict someone of a serious crime.  The hearing’s audio portion is expected to be broadcast “live” at C-SPAN.org/supremecourt

Hearing begins at 10 a.m.:

Edwards v. Vannoy

Background: Last April, the Supreme Court ended years of uncertainty and wide disagreement among the Justices by ruling that the Sixth Amendment constitutional right to a jury in a criminal trial in state court requires that, if the crime had been a serious one, the jury would have to be unanimous to convict.  (Criminal trials in federal court have long required that jury verdicts be unanimous.)

As often happens in modern times when the Court settles a major constitutional issue on criminal law, this decision led to a new question: does the ruling apply retroactively, so that people convicted earlier by juries without the benefit of the decision can take advantage of it even though their state convictions have become final?

A state criminal case usually becomes final when, after the verdict, all appeals have been attempted and failed.  The only option then is to seek to overturn the conviction by challenging it in a federal court, relying on the constitutional writ of habeas corpus.

It is perhaps natural for most people to think that, once the Supreme Court decides a constitutional issue involving criminal law, it should apply in the case of everyone who might be affected by that ruling.  That, however, is not the way it works.

Of course, if an accused individual has not yet been tried in state court, a favorable Supreme Court decision that comes down while the case is going could apply if the same issue arises in that case.  And, if the state trial is over, but state court appeals are still unfolding, it is possible the Court decision could be invoked.

But what if all state proceedings are over? That is the point at which the convicted individual then seeks to move from state court to challenge his conviction and sentence in federal court.  The Supreme Court has worked out a legal formula for deciding whether to apply a decision to earlier cases.  It is the doctrine of retroactivity.

Under that concept, spelled out in a Supreme Court decision in 1989 (Teague v. Lane), a ruling definitely applies retroactively if it, in essence, was foreshadowed by or dictated by some prior decision of the Court.  In that situation, the decision is considered to be an “old” or pre-existing one,  and does reach retroactively.

If, however, the decision is definitely a “new” one, being announced for the first time, it does not automatically apply retroactively.  It does so only if one of two conditions is met: either it is a “watershed” rule so significant that a fair trial could not be held without it, or it is so sweeping that it removes a crime or a particular kind of suspect beyond a state’s power to punish.

That is what is at stake in a new case from Louisiana that the Justices will hear tomorrow on the fate of inmates in that state who were found guilty earlier by split jury votes. (At the time, Louisiana law allowed juries to convict with a minimum of 10 of the 12.)

It is a bit surprising that the Court has spent so much energy, for about a half-century, over the question of whether jury verdicts should be unanimous.  That has long been settled as a right in federal trials, and there were only two states that did not require unanimity in their criminal verdicts: Louisiana and Oregon.

It is still important, though, because the decision from last spring, requiring unanimity in state cases might allow reopening of an unknown number of earlier cases where verdicts were not unanimous.  In fact, the dissenters in last April’s decision on unanimity (the case was Ramos v. Louisiana) expressed deep concern about that prospect (a concern that the majority did not share).

The new Louisiana case involves a black man from Baton Rouge, Thedrick Edwards, who was convicted of multiple counts of kidnapping, rape, and armed robbery for two nights of violent crime near a college campus.  He is serving three life prison terms, plus 150 years.  The 12-person jury that convicted him was split on the counts, and the only juror who voted consistently for Edwards was the sole black juror.

Edwards has used up all of his legal challenges in state courts, and has so far been rebuffed in lower federal courts.

His lawyers took his case to the Supreme Court in August of last year, seeking to overturn the non-unanimous jury verdict – the same question at issue in the Ramos case.  Two weeks after the Court ruled in favor of unanimity, it granted review of Edwards’ case, specifying that it would decide only whether the Ramos ruling applied in cases like his.

The question before the Court:  For now-closed state criminal cases still pending in federal court challenges, or not yet filed in federal court, do the individuals get a chance to challenge non-unanimous verdicts in their cases?

Significance: The Supreme Court has made this issue important simply because of the time and energy it has spent on it for some 48 years, even though the issue only has had meaning in two states and, for them, only for state cases. (In fact, from here on, there will be no more non-unanimous verdicts in Louisiana courts, because it has abandoned the practice on its own.)

Still, each group of nine Justices over that half-century span has regarded the issue both as very important but very difficult.

The decision that started the whole process, the 1972 ruling in the case of Apodaca v. Oregon, was split three different ways and no Court since has been able to assemble a majority to declare just what that decision means.  The divided decision last April in the Ramos case could not do so, either.

When the Court acts on the Edwards case, there is still no guarantee that it would develop a majority to decide whether the Ramos ruling did flow out of prior precedents, including the 1972 ruling and, therefore, was an “old” one that Edwards can apply.  It might have to settle for deciding whether it was a “new” one and then judge just how important it was to the concept of a fair trial.

The Court will hold hearings in five cases next week.