Ramos v. Louisiana Brief Amicus Curiae

    No. 18-5924

In  T h e

mpreme Court of tfje UntteiJ States!

Ev a n g e l is t o  Ra m o s ,

Petitioner,
v.

L o u is ia n a ,

Respondent.

On Writ of Certiorari
to the Louisiana Court of Appeal, Fourth Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF PETITIONER

S h e r r il y n  A . Ifell
Director-Counsel

Ja n a i  S. N e l s o n  
Sa m u e l  S p it a l  
K r is t e n  A. J o h n s o n  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  Fu n d , In c . 
40 Rector St., 5th Floor 
New York, NY 10006

D a n ie l  S. H a r a w a * 
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  Fu n d , In c . 
700 14th St. NW, Suite 600 
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Amicus Curiae 
* Counsel o f Record

June 18, 2019

mailto:dharawa@naacpldf.org


TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii

INTEREST OF AMICUS CURIAE .............................. 1

SUMMARY OF ARGUMENT........................................2

ARGUMENT................................   3

I. THE HISTORY OF THE FOURTEENTH
AMENDMENT COMPELS THE 
INCORPORATION OF THE SIXTH 
AMENDMENT UNANIMOUS JURY 
TRIAL RIGHT......................   - .3

II. LOUISIANA’S NON-UNANIMOUS JURY
PROVISION WAS DESIGNED TO 
NULLIFY BLACK JURY SERVICE....................10

III. THE DISCRIMINATORY DESIGN OF
LOUISIANA’S NON-UNANIMOUS JURY 
PROVISION PERSISTED AS INTENDED...... 16

CONCLUSION...............................................................24

PAGE



TABLE OF AUTHORITIES

PAGE(S)

CASES

Alexander v. Louisiana,
405 U.S. 625 (1972)....................................................1

Apodaca v. Oregon,
406 U.S. 404 (1972).................................. 3, 9, 11, 16

Brown v. Bd. of Educ. of Topeka,
347 U.S. 483 (1954).................................................... 1

Civil Rights Cases, 109 U.S. 3 (1883) ........................14

Cooper v. Aaron,
358 U.S. 1 (1958).........................................................1

Duncan v. Louisiana,
391 U.S. 145 (1968)............................................. 8, 10

Ham v. South Carolina,
409 U.S. 524 (1973).................................................... 1

McDonald v. Chicago,
561 U.S. 742 (2010).................................... 3, 4, 7, 10

Respublica v. Oswald,
1 Dali. 319 (Pa. 1788)................................................9

State v. Allen,
2015-0675, 2015 WL 6951570 (La. Ct.
App. 2015)..................................................................19



CASES

State v. Webb,
133 So. 3d 258 (La. Ct. App. 2014).......................13

Strauder v. West Virginia,
100 U.S. 303 (1879).............................................2, 14

Swain u. Alabama,
380 U.S. 202 (1965).....................     - .1

Timbs v. Indiana,
139 S. Ct. 682 (2019).............................................3, 4

STATUTES

An Act to Protect All Citizens in their Civil 
and Legal Rights, ch. 114, § 4, 18 Stat.
335 (1875)..............................................  14

Civil Rights Act of 1866, ch. 31, 14 Stat. 27
(1866)............................................................................ 6

La. Const, art. I, § 17 (1974)............ ...........................12

La. Const, art. 116 (1898)............................................ 12

H.R. Rep. No. 39-30 (1866)............................................ 6

U.S. Const, amend. V I ....................................................9

U.S. Const, art. Ill, § 2 ..........   9

iii

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



IV

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

A Century of Lawmaking for a New Nation:
U.S. Congressional Documents and 
Debates, 1774 -  1875, Library of 
Congress, https://memory.loc.gov/cgi- 
bin/ampage?collId:=llsl&fileName=016/ll
sl016.db&recNum=1166........................................... 7

Albert W. Alschuler & Andrew G. Deiss, A 
Brief History of the Criminal Jury in the 
United States, 61 U. Chi. L. Rev. 867,
876 (1994).....................................................................8

The Civil Rights Act of 1875, February 04,
1875, U.S. House of Representatives:
Historical Highlights, 
http s ://history. house. gov/Historical- 
Highlights/1851 - 1900/The - Civil- Rights- 
Act-of-1875/.................................................................. ?

The Civil Rights Bill of 1866, April 09,
1866, U.S. House of Representatives:
Historical Highlights, 
http s ://history .house. gov/Historical - 
Highlights/1851 - 1900/The - Civil- Rights- 
Bill-of-1866/................................................ 6

https://memory.loc.gov/cgi-bin/ampage?collId:=llsl&fileName=016/ll
https://memory.loc.gov/cgi-bin/ampage?collId:=llsl&fileName=016/ll


V

PAGE(S)

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

Equal Justice Initiative, Illegal Race 
Discrimination in Jury Selection: A  
Continuing Legacy 9 (2010)..................................... 8

Gerald V. Magliocca, The Father of the 14th 
Amendment, N.Y. Times Opinionator 
(Sept. 17, 2013),
https://opinionator.blogs.nytimes.com/20
13/09/17/the -father-of-the-14th-
amendment/.................................................................6

James Forman, Jr., Juries and Race in the 
Nineteenth Century, 113 Yale L.J. 895 
(2004).....................................................................  8

Jeff Adelson, Download the Data Used in 
the Advocate’s Exhaustive Research in 
“Tilting the Scales” Series, The Advocate 
(Apr. 1, 2018),
http s ://www .the advocate. com/new_orle a 
ns/news/courts/article_6f31d456-351a- 
He8-9829-130ab26e88e9.html.............................. 17

https://opinionator.blogs.nytimes.com/20


VI

OTHER AUTHORITIES

Jeff Adelson et al., How an Abnormal
Louisiana Law Deprives, Discriminates 
and Drives Incarceration: Tilting the 
Scales, The Advocate (Apr. 1, 2018),
https://www.theadvocate.com/haton__rou
ge/news/courts/article_16fd0ece-32bl-

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

He8-8770-33eca2a325de.html..............................17

John Hope Franklin, The Civil Rights Act of 
1866 Revisited, 41 Hastings L.J. 1135 
(1990)............................................................................ 6

John Simerman & Gordon Russell,
Louisiana Voters Scrap Jim Crow-Era 
Split Jury Law; Unanimous Verdicts to 
be Required, The Advocate (Nov. 6,
2019, 9:45 PM),
http s ://ww w .the advocate. com/b aton_rou 
ge/news/politics/elections/article_194bd5
ca-eld9-lle8-996b-eb8937ebf6b7.html...............13

Kate Riordan, Ten Angry Men: Unanimous 
Jury Verdicts in Criminal Trials and 
Incorporation After McDonald, 101 J.
Crim. L. & Criminology 1403 (2011)...................... 9

https://www.theadvocate.com/haton__rou


PAGE(S)

vii

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

Official Journal of the Proceedings of the 
Constitutional Convention of the State of 
Louisiana 9 (1898),
https://babel.hathitrust.org/cgi/pt?id=njp
.32101065310607..............................................12, 13

Paul Finkelman, The Historical Context of 
the Fourteenth Amendment, 13 Temp.
Pol. & Civ. Rts. L. Rev. 389, 402-03
(2004)................................................ ...................... 4, 5

Paul Finkelman, John Bingham and the 
Background to the Fourteenth 
Amendment, 36 Akron L. Rev. 671, 681 
(2003)...................................................................... 4, 5

Robert J. Smith & Bidish J. Sarma, How 
and Why Race Continues to Influence the 
Administration of Criminal Justice in 
Louisiana, 72 La. L. Rev. 361 (2012). .....12, 15, 16

Seth Fox, Houma Judge Suspended for 
Wearing Blackface Halloween Costume,
Houma Today (Dec. 13, 2014), 
https://www.houmatoday.com/article/DA 
/20041213/News/608099465/HC/.............. 19

https://babel.hathitrust.org/cgi/pt?id=njp
https://www.houmatoday.com/article/DA


vm

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Steven G. Calabresi & Sarah E. Agudo,
Individual Rights Under State 
Constitutions when the Fourteenth 
Amendment Was Ratified in 1868: What 
Rights Are Deeply Rooted in American 
History and Tradition?, 87 Tex. L. Rev.
7, 77 (2008).................................................................. 9

Thomas Ward Frampton, The Jim Crow 
Jury, 71 Vand. L. Rev. 1593, 1602-03 
(2018)........................................................ 8, 16, 17, 18

13th Amendment to the U.S. Constitution:
Abolition of Slavery, National Archives:
America’s Historical Documents, 
http s ://w w w . archives. go v/historical- 
docs/13th-amendment.............................................. 4

William E. Nelson, The Fourteenth
Amendment: From Political Principle to 
Judicial Doctrine 61 (1988).................................... 7



1

INTEREST OF AMICUS CURIAE
Since its founding by Thurgood Marshall close to 

80 years ago, the NAACP Legal Defense and 
Educational Fund, Inc. (“LDF”) has strived to secure 
the constitutional promise of equality for all people. 
Petitioner asks the Court to reconsider an important 
question about the Fourteenth Amendment s reach, 
which, more than any other constitutional provision, 
embodies our Nation’s commitment to equal justice 
under the law.

LDF has been at the forefront of efforts to enforce 
the Fourteenth Amendment’s promise of equality. 
See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958); Brown v. 
Bd. of Educ. of Topeka, 347 U.S. 483 (1954). LDF has 
also led the fight of eradicating discrimination from 
jury verdicts. See, e.g., Ham v. South Carolina, 409 
U.S. 524 (1973)■, Alexander v. Louisiana, 405 U.S. 625 
(1972); Swain v. Alabama, 380 U.S. 202 (1965).

LDF submits this brief to aid the Court in 
deciding whether the Fourteenth Amendment’s Due 
Process Clause incorporates the Sixth Amendment’s 
unanimity requirement against the States.1

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have 
consented to the filing of this brief.



2

SUMMARY OF THE ARGUMENT

After the Civil War, Congress passed the 
Fourteenth Amendment and the Civil Rights Act of 
1875 to protect the rights of newly freed African 
Americans. One of the rights protected by those 
provisions was the right to serve on a jury. Indeed, 
this Court affirmed the centrality of jury service to the 
citizenship of African Americans 140 years ago. See 
Strauder v. West Virginia, 100 U.S. 303 (1879).

Then, in 1898, white Louisianans convened a 
constitutional convention. Their goal was to craft a 
constitution that would “establish the supremacy of 
the white race . . .  to the extent to which it could be 
legally and constitutionally done . . . .” Louisiana 
ratified its non-unanimous jury provision at this 
convention to help achieve its goal of cementing white 
supremacy. While federal law made it illegal to 
exclude Black people from jury service, the delegates 
passed the non-unanimous jury provision to nullify 
the votes of Black jurors and allow white jurors to 
more easily convict Black defendants.

Louisiana’s non-unanimous jury provision 
worked exactly as intended. Up until 2018, when 
Louisianans voted to remove the non-unanimous jury 
provision from their constitution, Black defendants 
were more likely to be convicted by non-unanimous 
juries than white defendants, and Black jurors were 
more likely than white jurors to be in the dissent. 
Thus, despite jury service being a hallmark of 
American citizenship, for over a century, Louisiana’s



3

non-unanimous jury provision effectively undermined 
Black participation on juries.

Louisiana has been permitted to thwart the 
intent of the Reconstruction Congress in this manner 
because of this Court’s decision in Apodaca v. Oregon, 
406 U.S. 404 (1972), in which Justice Powell’s 
idiosyncratic view that the Sixth Amendment s 
unanimity requirement does not apply to the States 
was the controlling opinion. This is the rare case in 
which stare decisis should not control, and this Court 
should hold that the Sixth Amendment requires state 
juries—like federal juries—to be unanimous.

ARGUMENT

I. THE HISTORY OF THE FOURTEENTH 
AMENDMENT COMPELS THE
INCORPORATION OF THE SIXTH 
AMENDMENT UNANIMOUS JURY TRIAL 
RIGHT.

This Court recently reiterated that “ [a] Bill of 
Rights protection is incorporated . . .  if it is 
‘fundamental to our scheme of ordered liberty,’ or 
‘deeply rooted in this Nation’s history and tradition.’” 
Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (quoting 
McDonald v. Chicago, 561 U.S. 742, 767 (2010)). 
Accordingly, when determining whether a provision 
of the Bill of Rights is “fundamental” or “deeply 
rooted,” the Court reckons with the historical context 
of the Fourteenth Amendment. See, e.g., McDonald, 
561 U.S. at 770-78 (explicating the position of “the



4

Framers and ratifiers of the Fourteenth 
Amendment”); id. at 776 (relying on “ [e]vidence from 
the period immediately following the ratification of 
the Fourteenth Amendment”); Timbs, 139 S. Ct. at 
688 (same). An examination of this history compels 
the incorporation of the Sixth Amendment’s 
unanimity requirement.

In the aftermath of the Civil War, Southern 
whites were neither prepared nor willing to accept the 
“fundamentally altered . . . racial status quo in the 
South.”2 The Thirteenth Amendment’s ratification 
abolished slavery in 1865.3 Nevertheless, recalcitrant 
Southern states persisted in “subjugat[ing] newly 
freed slaves and maintaining] the prewar racial 
hierarchy.” Timbs, 139 S. Ct. at 688. Between 1865 
and 1866, Southern legislatures accomplished this by 
passing discriminatory statutes, known as Black 
Codes, which “reduce[d] blacks to a status somewhere 
between that of slaves (which they no longer were) 
and full free people (which most white southerners 
opposed).”4 And Black Codes governed a wide range of 
aspects of everyday life, including the extent of 
African American access to the courtroom.5 For

2 Paul Finkelman, John Bingham and the Background to the 
Fourteenth Amendment, 36 Akron L. Rev. 671, 681 (2003).
3 See 13th Amendment to the U.S. Constitution•' Abolition o f 
Slavery, National Archives: America’s Historical Documents, 
https://www.archives.gov/historicakdocs/13th"amendment (last 
visited June 4, 2019).
4 Finkelman, supra note 2, at 685.
5 See Paul Finkelman, The Historical Context o f the Fourteenth 
Amendment, 13 Temp. Pol. & Civ. Rts. L. Rev. 389, 402_03

https://www.archives.gov/historicakdocs/13th%22amendment


5

example, under the Alabama Black Code, while Black 
people were allowed to testify in court, they were 
limited to testifying “only in cases in which freedmen, 
free negroes and mulattoes are parties.”6 Other 
states passed similar Black Codes, all of which had 
the same effect: Black people could not testify in civil 
cases between white people or in criminal cases in 
which a white person harmed another white person.7 
“[T]he law in effect declared that blacks were not 
‘equal’ to whites and that their testimony was not as 
‘good’ as that of whites.”8

It was against this backdrop of state-legislated 
refusal “to accept that the freed people were entitled 
to liberty, equality, or even fundamental legal 
rights,”9 that the need for Congress to create legal 
protections for formerly enslaved African Americans 
became clear. In December 1865, Congress created 
the Joint Committee on Reconstruction, and 
authorized the Committee “to investigate conditions 
in the South.”10

This investigation showed that with respect to 
formerly enslaved Black people, “it was impossible to 
abandon them, without securing them their rights as

(2004). State Constitutions also served to relegate African 
Americans to a status less than the whites. Id. at 403-04.
6 Id. at 402 (quoting Act. of Nov. 24, 1865, ch.6, 1865 Alabama 
Laws 90).
7 Id.
a id .
9 Finkelman, supra note 2, at 681.
10 Id. at 686.



6

free men and citizens.”11 It spurred Congress to pass 
the Civil Rights Act of 186612 over the staunch 
opposition of President Andrew Johnson.13 
“ [MJarking the first time Congress legislated upon 
civil rights,”14 the Act established that formerly 
enslaved African Americans had “the same rightfs] in 
every State and Territory in the United States” and 
“full and equal benefit of all laws and proceedings . . . 
as is enjoyed by white citizens . . . .”15
Notwithstanding the Act’s straightforward 
declaration of the rights of African Americans, “the 
Committee concluded that nothing short of a 
Constitutional amendment — what became the 
Fourteenth Amendment -  would protect the rights of 
the former slaves.”16

Congressman John Bingham, a key member of 
the Joint Committee, “took the lead in framing the 
14th Amendment.”17 Bingham fully understood that 
he was drafting the Amendment “in the context of the 
Black Codes of 1865-66 and the violence directed at

11 H.R. Rep. No. 39-30, at xii (1866).
12 Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866).
13 John Hope Franklin, The Civil Rights A ct o f 1866 Revisited, 
41 Hastings L.J. 1135, 1136 (1990).
14 The Civil Rights BUI o f 1866, April 09, 1866, U.S. House of
Representatives^ Historical Highlights,
https://history.house.gov/HistoricakHighlights/1851-1900/The- 
Civil-Rights-Bilhof-1866/ (last visited June 4, 2019).
15 Civil Rights Act of 1866 § 1.
16 Finkelman, supra note 2, at 687.
17 Gerald V. Magliocca, The Father o f the 14th Amendment, N.Y.
Times: Opinionator (Sept. 17, 2013),
https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of- 
the- 14th-amendment/.

https://history.house.gov/HistoricakHighlights/1851-1900/The-Civil-Rights-Bilhof-1866/
https://history.house.gov/HistoricakHighlights/1851-1900/The-Civil-Rights-Bilhof-1866/
https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of-the-
https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of-the-


7

blacks and white Unionists in the immediate post-war 
South.”18 The goal of the Fourteenth Amendment was 
clear: “reverse the racism and violence of slavery and 
its immediate aftermath,”19 and “secur[e] the fruits 
both of the war and of the three decades of antislavery 
agitation proceeding it.”20

For newly freed Black people, the Fourteenth 
Amendment was an assurance that the Constitution 
now protected rights that were once brazenly denied 
them by state and local governments. Indeed, the 
Fourteenth Amendment “fundamentally altered our 
country[ ].” McDonald, 561 U.S. at 754. Before the end 
of the Reconstruction era, the States also ratified the 
Fifteenth Amendment in 187021 (giving Black men 
the right to vote), and Congress enacted the Civil 
Rights Act of 187522 (outlawing racial discrimination 
in public accommodations and in jury selection), 
further securing Black people’s civil rights.

One of the most important rights Congress 
protected in both the Fourteenth Amendment and the

18 Finkelman, supra note 2, at 691.
19 Finkelman, supra note 5, at 409.
20 William E. Nelson, The Fourteenth Amendment-' From 
Political Principle to Judicial Doctrine 61 (1988).
21 See A Century of Lawmaking for a New Nation: U.S.
Congressional Documents and Debates, 1774 -  1875, Library of 
Congress, https://memory.loc.gov/cgi-
bin/ampage?collId=llsl&fileName=016/llsl016.db&recNum=116
6 (last visited June 11, 2019).
22 The Civil Rights A ct o f 1875, February 04, 1875, U.S. House
of Representatives: Historical Highlights,
https://history.house.gov/Historical-Highlights/1851-1900/The-
Civil-Rights-Act-of-1875/ (last visited June 11, 2019).

https://memory.loc.gov/cgi-
https://history.house.gov/Historical-Highlights/1851-1900/The-


8

Civil Rights Act of 1875 is the right to trial by a jury 
free from racial discrimination in jury selection. As 
this Court said in Duncan v. Louisiana, “ [t]he 
guarantees of jury trial . . . reflect a profound 
judgment about the way in which law should be 
enforced and justice administered.” 391 U.S. 145, 155 
(1968). Jury service is a “free school. . .  in which each 
juror learns his rights,”23 “teaching] men equity in 
practice.”24 And the exclusion of African Americans 
from juries not only denies a core right of citizenship 
to excluded jurors, it restricts access to justice both to 
African Americans charged with crimes and to 
African Americans who are victims of crimes.25

In making the right to trial by jury a federal 
constitutional right for state trials as well as federal 
ones, the Reconstruction Congress also enshrined the 
right to a unanimous jury verdict. Because of its long- 
understood importance,26 the right to jury trial was

23 Albert W. Alschuler & Andrew G. Deiss, A B rief H istory o f the 
Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 876 
(1994) (quoting Alexis de Tocqueville, 1 Democracy in America 
285 (Knopf, 1945)).
24 Id.
25 Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 
1593, 1602-03 (2018); see also James Forman, Jr.. Juries and 
Race in the Nineteenth Century, 113 Yale L.J. 895, 918-19 
(2004) (recounting the role of juries with respect to violence 
committed by whites against politically active African 
Americans and white Republicans).
26 The right to a jury trial was “enshrined in our foundational 
legal documents, from the Magna Carta to the Declaration of 
Independence and the Bill of Rights, and in every state 
constitution.” Equal Justice Initiative, Illegal Race 
Discrimination in Jury' Selection- A Continuing Legacy 9 (2010).



9

explicitly protected by state constitutions in 36 out of 
the 37 states when the Fourteenth Amendment was 
ratified in 1868.27 And unanimity had “been a feature 
of the Anglo-American legal system for centuries.”28 
Indeed, unanimity became the accepted rule in the 
United States during the eighteenth century. See 
Apodaca v. Oregon, 406 U.S. 404, 408 n. 3 (1972).29 As 
stated in 1788 by Chief Justice M’Kean of the 
Supreme Court of Pennsylvania when discussing the 
state’s constitutional provision explicitly requiring 
unanimous juries, “I have always understood it to be 
the law, independent of this section, that the twelve 
jurors must be unanimous in their verdict, and yet 
this section makes this express provision.” Respublica 
v. Oswald, 1 Dali. 319, 323 (Pa. 1788).

Unanimity in jury trials is fundamental to the 
purpose of the jury trial: “to prevent oppression by the

Furthermore, the right to jury trial is the only right guaranteed 
both in the original Constitution and the Bill of Rights. AteeU.S. 
Const, art. Ill, § 2; U.S. Const, amend. VI.
27 Steven G. Calabresi & Sarah E. Agudo, Individual Rights 
Under State Constitutions when the Fourteenth Amendment 
Was Ratified in 1868- What Rights A re D eeply Rooted in 

American History and Tradition?, 87 Tex. L. Rev. 7, 77 (2008).
28 Kate Riordan, Ten Angry Men-' Unanimous Jury Verdicts in 
Criminal Trials and Incorporation A fter McDonald, 101 J. Crim. 
L. & Criminology 1403, 1419 (2011).
29 “[Tjhe explicit constitutional provisions, particularly of States 
such as North Carolina and Pennsylvania, the apparent change 
of practice in Connecticut, and the unquestioning acceptance of 
the unanimity rule by text writers such as St. George Tucker 
indicate that unanimity became the accepted rule during the 
18th century . . . .”



10

Government.”30 The government’s power to take away 
one’s liberty by way of criminal conviction is a power 
that remains in check by jury trials only when they 
follow “an ‘indestructible principle’ of American 
criminal law . . . that ‘guilt must be established 
beyond a reasonable doubt. All twelve jurors must be 
convinced beyond that doubt.’”31 In this way, the 
unanimous jury trial and the Fourteenth Amendment 
overlap in purpose: “to prevent oppression by 
Government.”32

In short, “ [ejvidence from the period immediately 
following the ratification of the Fourteenth 
Amendment,” McDonald, 561 U.S. at 776, shows that 
the Framers would have intended the Sixth 
Amendment’s unanimity requirement to be 
incorporated against the States.

II. LOUISIANA’S NON-UNANIMOUS JURY
PROVISION WAS DESIGNED TO NULLIFY 
BLACK JURY SERVICE.

Despite the foregoing, a majority of this Court in 
Apodaca held that the Fourteenth Amendment does 
not require the Sixth Amendment’s unanimity rule to 
be applied in state trials. In reaching that conclusion, 
the Court did not grapple with the racist history of 
Louisiana’s non-unanimous jury provision. Thus, the

30 Duncan, 391 U.S. at 155.
31 Riordan, supra note 28, at 1424 (quoting Billeci v. U.S., 184 
F.2d 394, 403 (D.C. Cir. 1950)).
32Duncan, 391 U.S. at 155.



11

Court failed to appreciate the protections unanimity 
provides against racial prejudice infecting jury trials.

In Apodaca, the Petitioners argued “unanimity 
[was] a necessary precondition for effective 
application of the cross-section requirement, because 
a rule permitting less than unanimous verdicts will 
make it possible for convictions to occur without the 
acquiescence of minority elements within the 
community.” Apodaca, 406 U.S. at 412-13.

Justice White’s opinion rejected this argument 
because it refused to accept its premise. Id. at 413. 
Justice White could not “assume that the majority of 
the jury will refuse to weigh the evidence and reach a 
decision upon rational grounds . . .  or that a majority 
will deprive a man of his liberty on the basis of 
prejudice when a minority is presenting a reasonable 
argument in favor of acquittal.” Id. Justice White 
“simply [found] no proof for the notion that a majority 
will disregard its instructions and cast its votes for 
guilt or innocence based on prejudice rather than 
evidence.” Id. at 413-14.

In so reasoning, Justice White’s opinion does not 
reckon with the overwhelming evidence that shows 
Louisiana’s non-unanimous jury provision was 
enacted with discriminatory intent and was designed 
to facilitate white jurors being able to convict Black 
defendants over the dissent of Black jurors.

After Reconstruction ended and federal troops left 
the South, Louisianan Democrats called a



12

Constitutional Convention in 1898.33 As two scholars 
of this period summarized, “the sinister purpose of the 
Convention was to create a racial architecture in 
Louisiana that could circumvent the Reconstruction 
Amendments and marginalize the political power of 
black citizens.”34 It was at this Convention that 
Louisiana ratified its non-unanimous jury- 
provision.35

The Convention’s official record is replete with 
references to its racist goals. In his opening remarks, 
Convention President Ernest Kruttsehnitt stated that 
the “convention has been called together by the people 
of the State to eliminate from the electorate the mass 
of corrupt and illiterate voters who have during the 
last quarter of a century degraded our politics.”36 The 
goal, said Kruttsehnitt, was the “purification of the 
electorate.”37 The Judiciary Committee Chair, Judge 
Thomas Semmes, was more blunt. He declared that 
the purpose was “to establish the supremacy of the

33 See Robert J. Smith & Bidish J. Sarma, How and Why Race 
Continues to Influence the Administration of Criminal Justice in 
Louisiana, 72 La. L. Rev. 361, 374-75 (2012).
34 Id.
35 The provision first required for “cases in which the 
punishment is necessarily at hard labor,” that nine out of twelve 
jurors vote for guilt. La. Const, art. 116 (1898). The provision 
was updated in 1974 to require that at least ten jurors vote for 
guilt. Seeha.. Const, art. I, § 17 (1974).
36 Official Journal of the Proceedings of the Constitutional
Convention of the State of Louisiana 9 (1898),
https://babel.hathitrust.org/cgi/pt?id=njp. 32101065310607 
[hereinafter Official Journal].
v  Id.

https://babel.hathitrust.org/cgi/pt?id=njp


13

white race in this State to the extent to which it could 
be legally and constitutionally done . . . ,”38

Convention delegates sought to placate the 
“popular sentiment of th[e] State,” which, as one 
delegate put it, was the desire for “universal white 
manhood suffrage, and the exclusion from the 
suffrage of every man with a trace of African blood in 
his veins.”39 At the end of the Convention, 
Kruttschnitt marveled at its success, congratulating 
the delates for drafting a constitution that would 
“perpetuate the supremacy of the Anglo-Saxon race in 
Louisiana.”40

Before 1898, juries needed to be unanimous for a 
felony conviction.41 That changed, as “one product of 
the Louisiana Constitution of 1898 was the 
enactment of Article 116 of the Constitution of 1898, 
which, for the first time in Louisiana, provided for 
non-unanimous jury verdicts in non-capital felony 
cases . . . .”42 This provision was one of the ways the 
Convention delegates sought to perpetuate white 
supremacy.43

as Id. at 375.
39 Id. at 380.
40 Id. at 381.
41 Aee John Simerman & Gordon Russell, Louisiana Voters Scrap
Jim CrowEra Split Jury Law,' Unanimous Verdicts to be 
Required, The Advocate (Nov. 6, 2019),
http s ://w ww. theadvocate ,com/baton_r ouge/news/p olitics/electio 
ns/article„194bd5ca-e Id9-lle8-996treb8937ebf6b7.html.
«  State v. Webb, 133 So. 3d 258, 282 (La. Ct. App. 2014).
43 See Frampton, supra note 25, at 1619 (“[Njonunanimous 
verdicts carefully and methodically worked to dilute the political



14

Around the time of the Convention, there were 
growing calls for Louisiana to adopt a non-unanimous 
jury system. Because of the newly ratified Fourteenth 
Amendment and the passage of the Civil Rights Act 
of 1875, Black men were guaranteed the right to serve 
on juries.44 White Louisianans mourned over this new 
reality, as one paper, envious of southern states that 
resisted Black people serving on juries until the 
1880s, stated, “Evidently our neighbors have not had 
as large experience as we Louisiana in the matter of 
negro jurors. We were ‘broke in’ to it immediately 
after the war.”45 It was this new reality that prompted 
white Louisianans to advocate for a non-unanimous 
jury provision.46

The calls for a non-unanimous jury provision 
were in part borne from the belief that Black people 
were not of “much advantage in any capacity in the

and civil rights of black Louisianans within a legal framework 
that demanded at least lip service to the fiction of race 
neutrality.”).
44 See Strauder v. West Virginia, 100 U.S. 303 (1879),' An Act to 
Protect All Citizens in their Civil and Legal Rights, ch. 114, § 4, 
18 Stat. 335 (1875). This Court later found much of the Civil 
Rights Act of 1875 unconstitutional. See C ivil Rights Cases, 109 
U.S. 3 (1883). The Court, did not, however, strike down Section 
4 of the Act, which outlawed racial discrimination in jury 
selection. Id. at 15.
45 Frampton, supra note 25, at 1602 (quoting Negro Jurors in 
Texas, Daily Shreveport Times, Feb. 19, 1885, at 4).
46 See Smith & Sarma, supra note 33, at 374-76.



15

courts of law”47 as they were “ignorant, incapable of 
determining credibility, and susceptible to bribery.”48

The calls were also borne from a desire to ensure 
that Black men were convicted when charged with a 
crime, regardless of the evidence. The thought of 
Black defendants being acquitted was untenable to 
white Louisianans. As one local paper acknowledged, 
“in some of the parishes of the State the hostility to 
the negro is . . . such . . . that . . . juries in these 
benighted localities seem to think that it is their 
bounden duty to render a verdict o f ‘guilty as charged,’ 
because the accused has black skin.”49 White 
Louisianans believed a non-unanimous jury provision 
would address this fear by ensuring white jurors’ 
ability to convict Black defendants over the dissent of 
Black jurors.50

By contrast, white Louisianans feared that if 
Black men served on juries, Black defendants “would 
simply not be convicted because of the African- 
American presence in the jury box.”51 After the 
Fourteenth Amendment was ratified, one popular 
newspaper lamented that “if a negro be on trial for 
any crime, [a Black juror] becomes at once his earnest

47 Id. at 375 (quoting Future o f the Freedman, Daily Picayune, 
Aug. 31, 1873, at 5).
48 Id. at 376.
49 See Frampton, supra note 25 at 1603 (quoting Prejudiced 
Verdicts, Opelousas Courier, Oct. 26, 1985, at l).
50 See Smith & Sarma, supra note 33 at 375-76.
si Id. at 375.



16

champion, and a hung jury is the usual result.”52 A 
few years before the 1898 Convention, the same paper 
“endorsed the adoption of nonunanimous verdicts” to 
avoid hung juries.53 The paper claimed such a 
provision was needed to avoid “popular justice”—the 
mob lynchings that often occurred when Black 
defendants were acquitted.54 The article reasoned 
that guilty verdicts “placatfed] those intent on 
committing extralegal forms of racial violence.”55 The 
paper concluded that a non-unanimous jury provision 
was needed to ensure that “one partisan” (read: Black 
person) on the jury does not “disappoint or obstruct 
justice.”56

The history of Louisiana’s non-unanimous jury 
provision is important to an incorporation analysis 
and is the “proof’ Justice White thought lacking that 
shows unanimity is required to ensure convictions are 
not “based on prejudice rather than evidence.” 
Apodaca, 406 U.S. at 413-14.

III. THE DISCRIMINATORY DESIGN OF 
LOUISIANA’S NON-UNANIMOUS JURY 
PROVISION PERSISTED AS INTENDED.

While jury deliberations are the proverbial black 
box, a dataset recently compiled by investigative

52 Id. at 375 (quoting Future of the Freedman, Daily Picayune, 
Aug. 31, 1873, at 5).
53 Frampton, supra note 25, at 1613 (citing Put a Stop to 
Bulldozing, Daily Picayune, Feb. 1, 1893, at 4).
54 Id.
s 5 Id.
56 Id.



17

journalists provides the opportunity to analyze 
information from thousands of criminal jury trials in 
Louisiana.57 One scholar’s analysis of 199 recent non- 
unanimous verdicts in the dataset reveals the 
discriminatory effect of Louisiana’s non-unanimous 
jury provision between 2011 and 2017.58 In The Jim 
Crow Jury, Thomas Frampton examines, among 
other things, the 190 non-unanimous guilty verdicts 
delivered by racially mixed juries over that period.59 
As stated by Frampton, “[tjhese cases demonstrate 
that the nonunanimous-decision rule operates today 
just as it was intended to 120 years ago—to dilute the 
influence of black jurors.”60

Frampton found that, with respect to non- 
unanimous guilty verdicts (11-1 or 10-2 votes), 
African American jurors disproportionately cast not 
guilty votes overridden by the guilty votes of the other

57 See Jeff Adelson et al., How an Abnormal Louisiana Law
Deprives, Discriminates and Drives Incarceration■ Tilting the 
Scales, The Advocate (Apr. 1, 2018),
https ://www. theadvocate.com/baton_rouge/ new s/courts/article_ 
16fd0ece-32bl-lle8-8770-33eca2a325de.html; Jeff Adelson, 
Download the Data Used in the Advocate’s Exhaustive Research 
in ‘Tilting the Scales” Series, The Advocate (Apr. 1, 2018), 
https 7/www. theadvocate ,com/new_orleans/ne ws/courts/article. 
6f31d456-351a-lle8-9829-130ab26e88e9.html.
58 Analyses of this nature are not without their limitations. See 
Frampton, supra note 25, at 1621 (“The quality and detail of the 
data vary from parish to parish—a limitation attributable to the 
diversity of recordkeeping practices of minute clerks, clerks of 
court, and district attorneys in different jurisdictions.”).
59 Id. at 1636.
60 Id.



18

jurors: African American jurors were approximately 
2.5 times more likely to be in dissent.61

Frampton also found that African American 
defendants “were more likely to be convicted in cases 
where at least one or two jurors harbored doubts.”62 
In other words, African American defendants were 
overrepresented in the pool of defendants who were 
convicted non-unanimously; by contrast, white 
defendants “were overrepresented . . . among 
unanimous convictions and underrepresented . . . 
among nonunanimous convictions.”63

Thus, just as the delegates at the 1898 
Constitutional Convention intended, Louisiana’s non­
unanimous juries continued to over-empower white 
jurors while disempowering Black jurors. The story of 
two Black Louisianans who recently served as 
jurors—Willie Newton and Bobbie Howard— 
compellingly illustrates this point.64

Mr. Newton and Mr. Howard were both born and 
raised in the small town of Houma, in Terrebonne 
Parish; the same town where Evangelisto Ramos 
worked. Mr. Newton, who is 72 years old, runs a 
family business selling burial vaults. Sixty-three-

e1 Id. at 1637.
62 Id. at 1639.
63 Id.
64 Mr. Newtown and Mr. Howard’s story stems from an interview 
that the men did with the Advocate, see Adelson et al., supra 
note 57, and follow up interviews with undersigned counsel. 
Everything quoted is from their interviews with counsel unless 
attributed otherwise.



19

year-old Mr. Howard has his own accounting practice. 
Mr. Newton and Mr. Howard both attended 
segregated schools growing up. In fact, they went to 
the same high school, as there was only one in the 
Parish that educated Black children.

In 2014, two years before Mr. Ramos faced trial 
for second-degree murder, Mr. Newton and Mr. 
Howard were selected to serve on the jury for the trial 
of Matthew Allen, a 20-year-old Black man also 
accused of second-degree murder. The prosecution’s 
theory was that Mr. Allen intentionally shot and 
killed the victim; Mr. Allen’s defense to the charge 
was that he acted in self-defense.65 Mr. Newton and 
Mr. Howard were the only Black jurors. The other ten 
jurors on Mr. Allen’s jury were white.

Mr. Newton vividly recalled his feelings when he 
saw the jury’s composition: “Bobby and I saw from the 
beginning that our vote wasn’t going to matter. We 
were outnumbered.” “I could have just stayed home.” 
“Ain’t no difference we can make.” Mr. Newton felt 
doubly distraught when he saw that Mr. Allen had a 
“bad judge” who had been reprimanded for wearing 
blackface.66 Mr. Newton thought to himself, “Buddy, 
you’re doomed.”

ss See State v. Allen, 2015-0675, 2015 WL 6951570, at *2 (La. Ct. 
App. 2015).
66 In 2004, Judge Timothy Ellender was suspended for wearing 
blackface, handcuffs, and a jail jumpsuit to a Halloween party. 
See Seth Fox, Houma Judge Suspended for Wearing Blackface 
Halloween Costume, Houma Today (Dec. 13, 2014),



20

Reflecting back, Mr. Newton and Mr. Howard 
thought Mr. Allen’s race worked against him with the 
white jurors. “They see a Black defendant in a drug 
deal and maybe think ‘he’s hustling corner to corner, 
let’s teach him a lesson,”’ Mr. Howard speculated. Mr. 
Newton echoed this sentiment: “I think they saw him 
as a potential threat to the community.”

Mr. Newton and Mr. Howard looked at Mr. Allen 
differently. They saw a young man who may have 
made a mistake, but who still had a life ahead of him. 
Mr. Howard thought these differing perspectives 
could be due to the fact “their life experiences were 
different.”

After listening intently to the evidence, both Mr. 
Howard and Newton favored finding Mr. Allen guilty 
of manslaughter. “I thought about his age. I thought 
he deserved a second chance,” Mr. Howard said 
quietly. Mr. Newton confirmed that he “never thought 
it was second-degree murder” and proposed to his 
fellow jurors that Mr. Allen should be convicted of 
manslaughter, not murder.

Deliberations gave both men hope that at least 
some of the white jurors would see the evidence their 
way and would find Mr. Allen guilty of manslaughter, 
not murder. Mr. Howard recalled that one juror, a 
white woman, seemed to be leaning in favor of 
manslaughter going into lunch. Mr. Newton 
remembered there being two or three white jurors

https://www.houmatoday.com/article/DA/20041213/News/60809
9465/HC/.

https://www.houmatoday.com/article/DA/20041213/News/60809


21

who seemed to think manslaughter was the just 
conviction.

Things took a turn after lunch, however. Mr. 
Howard recounted that he and Mr. Newton had lunch 
together, while the white jurors ate together. When 
they returned from lunch, all ten white jurors wanted 
to vote for second-degree murder; there was no 
convincing them otherwise, “everyone was set in their 
ways.”

Mr. Newton’s prediction that his vote wouldn’t 
matter proved prescient. The jury convicted Mr. Allen 
of second-degree murder by a vote of 10-2. All ten 
white jurors voted for guilt. Mr. Newton and Mr. 
Howard voted not guilty.

What took place troubled Mr. Howard and Mr. 
Newton. Mr. Howard recalled: “I pretty much felt 
sorry for the young man, to tell you the truth.” Mr. 
Newton was more shaken: “It hurt me real bad when 
I looked at that young man, and I looked at his mother 
and father, and I knew they weren’t going to see him 
again, not unless they go up to Angola.”67 Indeed, Mr. 
Newton felt the effects of the trial long after it was 
over: “When I left that jury, it took me a couple of 
weeks to get myself together. Serving on that jury 
took something out of me.” Mr. Allen, who entered 
prison for a crime he a when he was only 20, continues 
to serve a life sentence in Angola Prison.

67 Adelson et al., supra note 57.



22

Mr. Newton realized that what happened in Mr. 
Allens trial probably happened in many others, 
causing him to wonder, “How many others had passed 
this way . . . and got the same treatment this boy got.” 
The trial, Mr. Newton explained, made him feel like 
his “voice didn’t matter,” “a second-class citizen.”

This experience confirmed for Mr. Newton that 
Louisiana’s non-unanimous jury system was unfair to 
Black defendants and Black jurors. In his opinion, the 
prosecutors “found a way to get around the system 
by limiting the number of Black people on Mr. Allen s 
jury to two, knowing they only needed ten votes for a 
conviction. The trial shook Mr. Newton’s confidence in 
the fairness of Louisiana’s justice system: “I know I 
couldn’t sit there and think I’d get a fair trial.”

Mr. Newton took solace in the fact Louisiana 
voters repealed the non-unanimous jury provision 
last year.68 He expressed that while he does think that 
“justice was served” during Mr. Allen’s trial, he felt 
“encouraged” and “empowered” to serve on a jury now 
that his vote was guaranteed to matter. Mr. Howard 
said that he, too, is ready to perform his “civic duty” 
and serve on a jury under Louisiana’s new unanimous 
jury scheme.

Mr. Newton and Mr. Howard’s experience is a 
stark example of the indignities inflicted upon Black 
people by Louisiana’s non-unanimous jury provision. 
It is a reminder that, until last year, Louisiana s non- 
unanimous jury system worked the way its racist

68 Oregon is now the only state with a non-unanimous jury 
provision.



23

proponents intended—to more easily convict Black 
defendants and to silence Black jurors. What makes 
this even worse, is that this system, conceived from 
racism, has been operating with this Court’s blessing 
for 47 years. Apodaca must be overruled. This Court 
should hold that the Fourteenth Amendment 
incorporates the Sixth Amendment’s unanimity 
requirement against the States.



24

CONCLUSION

LDF respectfully urges this Court to hold that the 
Fourteenth Amendment incorporates the Sixth 
Amendment’s unanimity requirement against the
States.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
Kristen A. Johnson 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006

June 18, 2019

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300
dharawa@naacpldf.org

Counsel for Am icus 
Curiae

* Counsel of Record

mailto:dharawa@naacpldf.org