Docket for 18-5924 (Supreme Court docket #18-5924)
Issue : Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
The relevant facts are that the Petitioner was tried for second degree murder before a 12 member jury. 10 jurors found the State proved the charges beyond a reasonable doubt, 2 did not. Nevertheless, under Louisiana law at the time, Ramos was convicted and sentenced to life in prison.
There is a rather interesting twist to this issue. James Madison’s Bill of Rights, as originally passed by the United States House of Representatives in 1790 contained a unanimous verdict requirement. That was removed by the United States Senate and subsequently dropped by the House prior to the Amendments being sent to the States for ratification.
Therefore, textually, no such Constitutional right should be inferred and the State of Louisiana should prevail.
The English common law has always required a unanimous verdict and when the Supreme Court originally applied the Sixth Amendment to the federal government, it enunciated a unanimous verdict requirement.
But, when the 14th Amendment was read to incorporate the Sixth Amendment against the States, the Supreme Court came up with a rather vacuous argument as to why the common law applied to the federal government but not the States.
Finally, Louisiana is a civil law jurisdiction and does not recognize the English common law.
This is one of the very rare situations where a textualist approach fails, due to the underpinnings of the English common law that must be considered and upon which the Constitution was drafted.
The proper approach to take in this case is the common law approach, which would properly result in a ruling for the Petitioner and the incorporation of the right to a unanimous jury verdict against the several States. This could also be considered an originalist approach and would be proper in this case.
The bottom line is that the Supreme Court should rule for Petitioner Ramos and I think they will, perhaps unanimously themselves, at least by 7 to 2.