The Supreme Court opened its new session last week by hearing argument in the case of Ramos v. Louisiana (oyez), which presents the question of whether the Due Process Clause of the Fourteenth Amendment requires a State jury to be unanimous to convict.
The Justices’ tenor from the bench suggested that they are inclined to hold that criminal verdicts in America must be unanimous. Indeed, the mood of the Justices was perhaps best illustrated by Justice Kavanaugh’s prodding of government counsel during their rebuttal argument:
It seems to me there are two practical arguments for overruling Apodaca[,] [which permits non-unanimous criminal verdicts in State jurisdictions (oyez)]. One is, as Justice Gorsuch says, there are defendants who have been convicted and sentenced to life, 10/2 or 11/1, who otherwise would not have been convicted. So that seems like a serious issue for us to think about in terms of overruling.
And, the second is that the rule in question here is rooted in a — in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s. [. . .]
So do either of those two things — or I guess I should say why aren’t those two things enough to overrule[?] [. . .] [W]hy aren’t those two things enough, again, unfairness to defendants and rooted in racism?
While it may come to pass that the Supreme Court’s decision in Ramos will banish nonunanimous verdicts from American courtrooms, the practice will remain in one jurisdiction – the military. (That is, except for the most serious cases. Even in the military, Articles 25a and 52 of the UCMJ require the unanimous concurrence of twelve members to convict a person of a capital offense. It seems, when it really matters, even military law recognizes that unanimous verdicts are more reliable.)