No. 19-5807

IN THE

Supreme Court of the United States
THEDRICK EDWARDS,
Petitioner,
v.
DARREL VANNOY, WARDEN,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR FORMER JUDGES,
PROSECUTORS AND PUBLIC OFFICIALS AS
AMICI CURIAE SUPPORTING PETITIONER
SETH P. WAXMAN
SAMUEL M. STRONGIN
NATHANIEL W. REISINGER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000

MICHAEL R. DREEBEN
(Counsel of Record)
JEREMY R. GIRTON
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006
(202) 383-5300
mdreeben@omm.com

ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007

YAIRA DUBIN
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
MELISSA C. CASSEL
O’MELVENY & MYERS LLP
Two Embarcadero Center
28th Floor
San Francisco, CA 94111

Attorneys for Amici Curiae

 i
QUESTIONS PRESENTED
Whether this Court’s decision in Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), applies
retroactively to cases on federal collateral review.

 ii
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ............................................................. 2
ARGUMENT ............................................................. 4
I. RAMOS DID NOT ANNOUNCE A NEW
RULE. ............................................................. 4
A. Ramos Reaffirmed The Original
Understanding Of The Sixth
Amendment Jury Right And Applied
Settled Principles Of Incorporation. ........ 5
B. Apodaca Does Not Render Ramos A
New Rule. .................................................. 7
II. THE UNANIMITY REQUIREMENT, IF
NEW, IS A WATERSHED RULE OF
CRIMINAL PROCEDURE. .......................... 11
A. A Unanimous Verdict Is Necessary To
Prevent An Impermissibly Large Risk
Of An Inaccurate Conviction. ................. 12
B. The Unanimity Requirement Is
Essential To The Fundamental
Fairness Of A Criminal Proceeding. ...... 21
CONCLUSION ........................................................ 27
APPENDIX: LIST OF AMICI CURIAE ................. 1a

 iii
TABLE OF AUTHORITIES
Page(s)
CASES
Allen v. United States,
164 U.S. 492 (1896) ............................................ 13
Am. Publ’g Co. v. Fisher,
166 U.S. 464 (1897) ............................................ 24
Anonymous Case,
41 Lib. Assisarum 11 (1367) ................................ 5
Apodaca v. Oregon,
406 U.S. 404 (1972) .......................................... 4, 8
Apprendi v. New Jersey,
530 U.S. 466 (2000) ........................................ 9, 24
Ballew v. Georgia,
435 U.S. 223 (1978) ............................................ 13
Beard v. Banks,
542 U.S. 406 (2004) .......................................18, 22
Betts v. Brady,
316 U.S. 455 (1942) .......................................11, 22
Blakely v. Washington,
542 U.S. 296 (2004) ............................................ 16
Blueford v. Arkansas,
566 U.S. 599 (2012) ............................................ 14
Brown v. Louisiana,
447 U.S. 323 (1980) .................................12, 20, 21
Burch v. Louisiana,
441 U.S. 130 (1979) ............................................ 20

 iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Cage v. Louisiana,
498 U.S. 39 (1990) .............................................. 16
Cantwell v. Connecticut,
310 U.S. 296 (1940) .............................................. 7
Chaidez v. United States,
568 U.S. 342 (2013) .............................................. 3
Crawford v. Washington,
541 U.S. 36 (2004) .............................................. 10
Desist v. United States,
394 U.S. 244 (1969) ........................................ 3, 11
DeStefano v. Woods,
392 U.S. 631 (1968) .......................................19, 20
Duncan v. Louisiana,
391 U.S. 145 (1968) ........................................ 6, 23
Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991) ............................................ 26
Flowers v. Mississippi,
139 S. Ct. 2228 (2019)........................................ 26
Gideon v. Wainwright,
372 U.S. 335 (1963) ...........................11, 22, 23, 24
Gilmore v. Taylor,
508 U.S. 333 (1993) ............................................ 18
Hamilton v. Alabama,
368 U.S. 52 (1961) .............................................. 22
Holland v. Illinois,
493 U.S. 474 (1990) ............................................ 14

 v
TABLE OF AUTHORITIES
(continued)
Page(s)
Idaho v. Wright,
497 U.S. 805 (1990) ............................................ 10
In re Winship,
397 U.S. 358 (1970) ............................................ 16
Jackson v. Virginia,
443 U.S. 307 (1979) ............................................ 16
Johnson v. Louisiana,
406 U.S. 356 (1972) ........................................ 8, 14
Johnson v. Zerbst,
304 U.S. 458 (1938) ............................................ 22
Lee v. Illinois,
476 U.S. 530 (1986) ............................................ 10
Lilly v. Virginia,
527 U.S. 116 (1999) ............................................ 10
Linkletter v. Walker,
381 U.S. 618 (1965) ............................................ 20
Mackey v. United States,
401 U.S. 667 (1971) ............................................ 21
Malloy v. Hogan,
378 U.S. 1 (1964) .................................................. 6
Mapp v. Ohio,
367 U.S. 643 (1961) .............................................. 7
McCleskey v. Kemp,
481 U.S. 279 (1987) ............................................ 25
McDonald v. City of Chicago,
561 U.S. 742 (2010) .............................................. 9

 vi
TABLE OF AUTHORITIES
(continued)
Page(s)
McGirt v. Oklahoma,
__ S. Ct. __, 2020 WL 3848063 (U.S.
July 9, 2020) ....................................................... 20
McKoy v. North Carolina,
494 U.S. 433 (1990) ............................................ 13
McLaughlin v. Florida,
379 U.S. 184 (1964) ............................................ 26
Montgomery v. Louisiana,
136 S. Ct. 718 (2016)............................................ 2
O’Dell v. Netherland,
521 U.S. 151 (1997) .......................................12, 18
Ohio v. Roberts,
448 U.S. 56 (1980) .............................................. 10
Pena-Rodriguez v. Colorado,
137 S. Ct. 855 (2017).....................................15, 26
Powell v. Alabama,
287 U.S. 45 (1932) .............................................. 23
Powers v. Ohio,
499 U.S. 400 (1991) ............................................ 26
Ramos v. Louisiana,
140 S. Ct. 1390 (2020)................................. passim
Richardson v. United States,
526 U.S. 813 (1999) .......................................... 8, 9
Riggs v. California,
119 S. Ct. 890 (1999)............................................ 7

 vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Saffle v. Parks,
494 U.S. 484 (1990) .............................................. 4
Sawyer v. Smith,
497 U.S. 227 (1990) ...........................12, 17, 18, 21
Schriro v. Summerlin,
542 U.S. 348 (2004) .................................15, 19, 20
Sullivan v. Louisiana,
508 U.S. 275 (1993) ............................................ 16
Teague v. Lane,
489 U.S. 288 (1989) ..................................... passim
Tehan v. United States ex rel. Shott,
382 U.S. 406 (1966) ............................................ 12
Thompson v. Utah,
170 U.S. 343 (1898) .............................................. 6
Timbs v. Indiana,
139 S. Ct. 682 (2019)............................................ 7
Tyler v. Cain,
533 U.S. 656 (2001) .......................................11, 16
United States v. Haymond,
139 S. Ct. 2369 (2019).......................................... 6
Wallace v. Jaffree,
472 U.S. 38 (1985) ................................................ 9
Welch v. United States,
136 S. Ct. 1257 (2016)...................................... 2, 4
White v. Illinois,
502 U.S. 346 (1992) ............................................ 10

 viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Whorton v. Bockting,
549 U.S. 406 (2007) ..................................... passim
Wright v. West,
505 U.S. 277 (1992) ............................................ 10
OTHER AUTHORITIES
2 J. Story, Commentaries on the
Constitution of the United States
(4th ed. 1873) ..................................................... 24
4 W. Blackstone, Commentaries on the
Laws of England (1769) ..................................... 16
ABA, Principles for Juries and Jury Trials,
Principle 4.B Commentary (2005) ..................... 13
Brief for American Bar Association as
Amicus Curiae, Ramos, 140 S. Ct. 1390,
2019 WL 2549746 (June 18, 2019) .................... 25
Brief of State Governments as Amici
Curiae, Gideon, 1962 WL 115122
(Nov. 23, 1962) ..............................................22, 23
Kim Taylor-Thompson, Empty Votes in
Jury Deliberations, 113 HARV. L.
REV. 1261 (2000) ...........................................13, 17
Reid Hastie et al., Inside the Jury (1983) ............. 13
Robert J. MacCoun & Tom R. Tyler,
The Basis of Citizens’ Perceptions of
the Criminal Jury: Procedural
Fairness, Accuracy, and Efficiency,
12 L. & Hum. Behav. 333 (1988) ....................... 25

 1
INTEREST OF AMICI CURIAE1
Amici formerly served as jurists, prosecutors, or
senior government officials in the criminal justice
system. Amici have participated in the judicial
system from multiple vantage points and have a
variety of perspectives on the proper administration
of justice, but they are united in their collective belief
that conviction by a unanimous jury is an essential
prerequisite to a fair criminal system.
Although amici have a profound appreciation for
the importance of finality interests, they are firm in
their view that jury unanimity is a right so deeply
rooted in the American tradition, and so critically
important to a trial’s fundamental fairness and
accuracy, that it must supersede finality interests.
Based on their decades of experience, amici are
convinced that this quintessential feature of the
American jury system ranks among the most
fundamental
procedural
rights
under
our
Constitution, promoting accurate verdicts, fairness,
and community acceptance of the criminal process.
Retroactive application of the unanimity rule to
convictions on collateral review is thus warranted.
Any person who was convicted despite dissenting
voices on the jury should be able to assert the
indispensable right to a unanimous verdict.

No counsel for a party authored this brief in whole
or in part, and no entity or person, other than amici
curiae and their counsel, made a monetary
contribution intended to fund the preparation or
submission of this brief. All parties have consented to
the filing of this brief.
1

 2
A full list of amici is included as Appendix A.
INTRODUCTION AND
SUMMARY OF ARGUMENT
When Petitioner Thedrick Edwards, an AfricanAmerican man, was tried for non-capital crimes, one
juror (the lone African American on the jury) voted to
acquit.
Under Louisiana’s non-unanimous jury
scheme, however, that juror’s vote was meaningless.
Despite the juror’s conclusion that the prosecution
had not proved Edwards guilty beyond a reasonable
doubt, Edwards was convicted and sentenced to life in
prison. That conviction—which in federal court or 48
states would have been invalid—violates the Sixth
Amendment and bedrock standards for a fair and
accurate trial. This Court should hold that Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), applies
retroactively to cases on collateral review and vacate
Edwards’ non-unanimous conviction.
To balance the important interest in the finality of
criminal judgments against “the countervailing
imperative to ensure that criminal punishment is
imposed only when authorized by law,” Welch v.
United States, 136 S. Ct. 1257, 1266 (2016), this Court
adopted a retroactivity framework in Teague v. Lane,
489 U.S. 288 (1989), that reflected Justice Harlan’s
view of retroactivity.
Under Teague, “a new
constitutional rule of criminal procedure does not
apply, as a general matter, to convictions that were
final when the rule was announced.” Montgomery v.
Louisiana, 136 S. Ct. 718, 728 (2016).
But the Teague bar has never been absolute. The
Court has consistently recognized that Teague does
not apply when the case in question does not

 3
announce a “new rule.” Chaidez v. United States, 568
U.S. 342, 347 (2013). Teague, like its antecedents,
was designed to address new, previously
unrecognized rules of criminal procedure; it was
never intended to preclude retroactive application of
decisions “grounded upon fundamental principles
whose content does not change dramatically from
year to year.” Desist v. United States, 394 U.S. 244,
263 (1969) (Harlan, J., dissenting). And, under
Teague, even new rules of criminal procedure will
apply retroactively on collateral review if they qualify
as “watershed.” The watershed exception recognizes
that finality must yield to retroactive application of
rules that are “central to an accurate determination
of innocence or guilt” and an “absolute prerequisite to
fundamental fairness.” Teague, 489 U.S. at 313-14
(plurality opinion). Although the balance struck in
Teague means that few decisions of this Court will
apply retroactively, “few” has never meant “zero.”
Last Term’s decision in Ramos is within the select
set deserving of retroactive application. By holding
that the right to a unanimous jury verdict applies to
all state criminal defendants, Ramos restored the
original understanding of the Sixth Amendment and
eliminated a lingering remnant of the Jim Crow era.
In doing so, the Court did not “break[] new ground” in
the sense Teague contemplates. Chaidez, 568 U.S. at
347. Instead, it applied “seemingly straightforward
principles” of law the Court had articulated
“repeatedly and over many years.” Ramos, 140 S. Ct.
at 1395-96. Teague does not, and was never intended
to, apply in this unusual circumstance. Ramos
therefore falls outside the Teague bar because it does
not qualify as a “new” rule.

 4
But even if Ramos’s rule were “new” in the literal
sense, it should nonetheless apply retroactively.
Teague recognizes that some procedural protections
are too important to allow convictions obtained in
contravention of their guarantees to stand. Jury
unanimity is one of those protections because it
implicates the fundamental fairness and accuracy of
the criminal proceeding. Welch, 136 S. Ct. at 1264.
Edwards’ conviction, obtained by a nonunanimous
verdict, should be vacated.
ARGUMENT
I. RAMOS DID NOT ANNOUNCE A NEW
RULE.
A rule is “new,” for Teague purposes, if it “‘breaks
new ground,’ ‘imposes a new obligation on the States
or the Federal Government,’ or was not ‘dictated by
precedent existing at the time the defendant’s
conviction became final.’” Saffle v. Parks, 494 U.S.
484, 488 (1990) (quoting Teague, 489 U.S. at 301
(plurality opinion) (emphasis removed)). Ramos falls
outside that paradigm.
The decision was the
necessary outgrowth of two longstanding legal
principles: that the Sixth Amendment guarantees the
right to a unanimous jury verdict and that the Sixth
Amendment applies with full force against the States
through the Fourteenth Amendment.
Both
jurisprudential strands were settled long before
Edwards’s conviction became final in 2010. The only
reason Edwards’s conviction was permitted in the
first place was because of an anachronism in this
Court’s jurisprudence: the deeply divided decision in
Apodaca v. Oregon, 406 U.S. 404 (1972), which rested
on a single Justice’s view of the law that “was …

 5
foreclosed by precedent” the day it was decided,
Ramos, 140 S. Ct. at 1398. Ramos’s repudiation of
Apodaca and restoration of the historic and
unquestioned
unanimity
right
cannot
be
characterized as a “new” rule under Teague.
A. Ramos Reaffirmed The Original
Understanding Of The Sixth Amendment
Jury Right And Applied Settled
Principles Of Incorporation.
Ramos’s jurisprudential bases carry a unique
historical pedigree.
1. “The requirement of juror unanimity emerged in
14th century England and was soon accepted as a
vital right protected by the common law.” Ramos, 140
S. Ct. at 1395. Unanimity was so vital that, according
to a 1367 English case, “A ‘verdict, taken from eleven,
was no verdict’ at all.” Id. (quoting Anonymous Case,
41 Lib. Assisarum 11 (1367)).
The understanding that the jury trial right entails
a guarantee of unanimity traveled over to “the young
American States,” which “appeared to regard
unanimity as an essential feature of the jury trial.”
Ramos, 140 S. Ct. 1396. At the time of ratification,
accordingly, “[i]f the term ‘trial by an impartial jury’
carried any meaning at all, it surely included a
requirement as long and widely accepted as
unanimity.” Id. Were any more evidence needed,
“[i]nfluential, postadoption treatises,” including
Nathan Dane’s 1824 Digest of American Laws and
Justice Story’s 1833 Commentaries on the
Constitution, “confirm” the historical understanding.
Id.; see also id. at 1397 n. 22 (citing cases). In short,
the historical evidence is “unmistakable”—be it “the

 6
common law, state practices in the founding era, or
opinions and treatises written soon afterwards”— “[a]
jury must reach a unanimous verdict in order to
convict.” Id. at 1395.
The
Framers
firmly
embedded
that
jurisprudential foundation in the Constitution. As
the Court observed in Ramos, it had “commented on
the Sixth Amendment’s unanimity requirement no
fewer than 13 times over 120 years,” in cases as old as
Thompson v. Utah, 170 U.S. 343, 351 (1898)
(“Thompson’s crime was committed, it was his
constitutional right to demand that his liberty should
not be taken from him except by the joint action of the
court and the unanimous verdict of a jury of twelve
persons.”), and as new as United States v. Haymond,
139 S. Ct. 2369, 2377 (2019) (plurality opinion).
Ramos, 140 S. Ct. at 1397. Even “Apodaca itself [saw]
a majority of Justices … recognize[] that the Sixth
Amendment demands unanimity.” Id. at 1398.
2. The Fourteenth Amendment component to
Ramos—that the Sixth Amendment jury trial right
applies in full (unanimity requirement included) to
the States—is likewise well entrenched. The “Court
has long explained … that incorporated provisions of
the Bill of Rights”—including the Sixth Amendment
right to a jury trial, Duncan v. Louisiana, 391 U.S.
145, 150 (1968)—“bear the same content when
asserted against States as they do when asserted
against the federal government.” Ramos, 140 S. Ct.
at 1397. By 1964 (eight years before Apodaca), this
Court had “rejected the notion that the Fourteenth
Amendment applies to the States only a watereddown, subjective version of the individual guaranties
of the Bill of Rights.” Malloy v. Hogan, 378 U.S. 1, 10-

 7
11 (1964) (internal quotation marks omitted); see also,
e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“Since
the Fourth Amendment’s right of privacy has been
declared enforceable against the States through the
Due Process Clause of the Fourteenth, it is
enforceable against them by the same sanction of
exclusion as is used against the Federal
Government.”); Cantwell v. Connecticut, 310 U.S. 296,
303 (1940) (“The Fourteenth Amendment has
rendered the legislatures of the states as incompetent
as Congress to enact laws [infringing on the Free
Exercise Clause].”). And that rejection “has been
restated many times since, too, including as recently
as last year.” Ramos, 140 S. Ct. at 1398 (citing Timbs
v. Indiana, 139 S. Ct. 682, 687 (2019)).
3. These two lines of precedent give Ramos a
syllogistic quality.
Because:
(1) the Sixth
Amendment jury trial right includes the right to a
unanimous verdict; (2) that right is incorporated
against the States; and (3) rights incorporated
against the States apply in equal measure to the
federal and state governments, Ramos did little more
than “apply … settled rule[s] of [Sixth and
Fourteenth] Amendment law,” Riggs v. California,
119 S. Ct. 890, 892 (1999) (Stevens, J., respecting
denial of certiorari). As such, Ramos did not “fashion
a new rule, [and Edwards’s] claim may be asserted in
federal court” on collateral review. Id.
B. Apodaca Does Not Render Ramos A New
Rule.
That Ramos reached a result opposite to Apodaca
does not change the Teague analysis. Apodaca
“always stood on shaky ground,” as both rationales

 8
that could support it—i.e., that the Sixth Amendment
jury right did not include a unanimity right, or that
the Sixth Amendment jury right applied in a lesser
form against the States—had been rejected before,
after, and even in Apodaca itself. See Ramos, 140 S.
Ct. at 1398-99 (plurality opinion); infra at 24.
Apodaca was a “universe of one,” Ramos, 140 S. Ct. at
1409 (Sotomayor, J., concurring as to all but Part IVA): no case from this Court has ever relied on
Apodaca in reaching a decision, let alone endorsed its
opaque reasoning.
1. Apodaca’s bottom-line result was an amalgam
of two rationales, neither of which garnered a
majority in Apodaca—or in any other case. The first,
invoked by four Justices, was that the Sixth
Amendment’s guarantee of a jury trial did not include
the right to a unanimous verdict. See 406 U.S. at 406
(plurality opinion). That rationale could not supply
binding reasoning, because it was rejected not only by
the five other Justices in that very case, supra at 4-5,
but by subsequent majorities of this Court as well, see,
e.g., Richardson v. United States, 526 U.S. 813, 817
(1999) (“[A] jury in a federal criminal case cannot
convict unless it unanimously finds that the
Government has proved each element”).
The
second
rationale—that
the
Sixth
Amendment’s right to a jury trial applies differently
against the States than against the federal
government—is equally infirm. Although Justice
Powell relied on this rationale to provide “the
essential fifth vote to uphold Mr. Apodaca’s
conviction,” Ramos, 140 S. Ct. at 1398; see Johnson v.
Louisiana, 406 U.S. 356, 369 (1972) (Powell, J.,
concurring), he charted that course alone, see

 9
McDonald v. City of Chicago, 561 U.S. 742, 766 n.14
(2010) (plurality opinion) (“In Apodaca, eight Justices
agreed that the Sixth Amendment applies identically
to both the Federal Government and the States.”).
Justice Powell’s idiosyncratic view on incorporation
therefore could not have supplied binding reasoning
for future cases because all understood that his view
“was … foreclosed by precedent” the day Apodaca was
decided. Ramos, 140 S. Ct. at 1398.
Even if Apodaca could be said to have articulated
a rule of law, as opposed to have reached a result, it
was quickly, repeatedly, and emphatically repudiated
by subsequent decisions of this Court. Multiple
decisions over the years reaffirmed that the Sixth
Amendment requires a unanimous verdict to convict.
See, e.g., Richardson, 526 U.S. at 817; Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000).
And
subsequent cases soundly rejected any suggestion
that Apodaca reflected a shift towards Justice
Powell’s view of the incorporation doctrine. As early
as 1985, for example, the Court reaffirmed “that the
several States have no greater power to restrain the
individual freedoms protected by the First
Amendment than does the Congress of the United
States.” Wallace v. Jaffree, 472 U.S. 38, 48-49 (1985).
And in June 2010—shortly before Edwards’s
conviction became final—a plurality of this Court,
holding that the Second Amendment is fully
incorporated against the States, dismissed Apodaca
as nothing more than an anomaly “result[ing from] an
unusual division among the Justices.” McDonald,
561 U.S. at 766 n.14 (plurality opinion). By the time
Edwards’s conviction became final, Apodaca’s already
shaky foundations had crumbled.

 10
2. This dual erosion of Apodaca’s rationale
underscores how poorly Ramos fits within Teague’s
understanding of what it means to announce a “new”
rule of criminal procedure.
Teague’s general
prohibition on the retroactivity of new procedural
rules is designed to ensure that “finality [will not be]
undermined by [the Court] changing a rule once
thought correct but now understood to be deficient on
its own terms.” Wright v. West, 505 U.S. 277, 308
(1992) (Kennedy, J., concurring). But every potential
rationale justifying the supposed constitutionality of
a non-unanimous verdict was already “understood to
be deficient on its own terms” well before Ramos
confirmed the impropriety of such verdicts. See
Ramos, 140 S. Ct. at 1409 (Sotomayor, J., concurring
as to all but Part IV-A) (noting that Apodaca was
“uniquely irreconcilable with not just one, but two,
strands of constitutional precedent well established
both before and after the decision”).
This distinguishes Ramos from other cases this
Court has held announced new rules because they
overturned precedent. For instance, in Whorton v.
Bockting, 549 U.S. 406 (2007), the Court held that its
Confrontation Clause opinion in Crawford v.
Washington, 541 U.S. 36 (2004), was a new rule
because it overturned Ohio v. Roberts, 448 U.S. 56
(1980). Unlike Apodaca, Roberts was a unanimous
opinion that the Court repeatedly reaffirmed before
charting a different course in Crawford. See, e.g.,
Lilly v. Virginia, 527 U.S. 116, 135-39 (1999); White v.
Illinois, 502 U.S. 346, 357 (1992); Idaho v. Wright, 497
U.S. 805, 815 (1990); Lee v. Illinois, 476 U.S. 530, 54344 (1986).

 11
Rather than resembling Crawford, Ramos
resembles Gideon v. Wainwright, 372 U.S. 335 (1963),
which the Court has acknowledged is the
paradigmatic rule that justifies retroactive
application. See Whorton, 549 U.S. at 419. As
discussed infra at 22-23, Gideon overturned Betts v.
Brady, 316 U.S. 455 (1942), a decision that—like
Apodaca—was “an anachronism when handed down”
and “departed from the sound wisdom upon which
[prior precedent] rested.” Gideon, 372 U.S. at 345.
Cases like Gideon and Ramos that overrule
acknowledged anomalies on which no one could “rely
with confidence” are not the sort of rules that Teague
feared would cause unwarranted interference with
finality. Desist, 394 U.S. at 264-65 (Harlan, J.,
dissenting).
Thus,
Ramos’s
centuries-old
understanding of the unanimity requirement is not a
“new” rule and should apply retroactively to cases on
collateral review.
II. THE UNANIMITY REQUIREMENT, IF NEW,
IS A WATERSHED RULE OF CRIMINAL
PROCEDURE.
If the Court nevertheless concludes that Ramos
announced a “new” rule of criminal procedure, it
should hold that the unanimity rule applies
retroactively
under
Teague’s
exception
for
“watershed” rules implicating the fundamental
fairness and accuracy of criminal proceedings. 489
U.S. at 311-12.
To qualify as watershed,
“[i]nfringement of the rule must seriously diminish
the likelihood of obtaining an accurate conviction, and
the rule must alter our understanding of the bedrock
procedural elements essential to the fairness of a
proceeding.” Tyler v. Cain, 533 U.S. 656, 665 (2001)

 12
(internal quotation marks omitted) (quoting Sawyer
v. Smith, 497 U.S. 227, 242 (1990)). Like the right-tocounsel guarantee that Gideon announced, the
unanimity right that Ramos secured satisfies both
requirements; it is among the “small core of rules”
“implicit in the concept of ordered liberty,” that apply
retroactively to cases on collateral review. O’Dell v.
Netherland, 521 U.S. 151, 157 (1997).
A. A Unanimous Verdict Is Necessary To
Prevent An Impermissibly Large Risk Of
An Inaccurate Conviction.
1. Many rules of criminal procedure may improve
a trial’s accuracy, but the unanimity requirement is
uniquely “central to an accurate determination of
innocence or guilt.” Teague, 489 U.S. at 313 (plurality
opinion). “The basic purpose of a trial,” this Court has
explained, “is the determination of truth, and it is the
jury to whom we have entrusted the responsibility for
making this determination in serious criminal cases.”
Brown v. Louisiana, 447 U.S. 323, 334 (1980)
(plurality opinion) (internal quotation marks and
citation omitted) (quoting Tehan v. United States ex
rel. Shott, 382 U.S. 406, 416 (1966)). Therefore, “[a]ny
practice that threatens the jury’s ability to properly
perform that function poses a similar threat to the
truth-determining process itself.” Id. Unanimity
guards against inaccurate verdicts by requiring jurors
to address and answer any objections before
rendering a verdict, forcing deliberations to wrestle
with competing understandings of the facts.
Unanimity also ensures that, to the maximum extent
possible, the verdict reflects the judgment of the
citizenry, embodying the diverse views represented
on the jury. Together, those functions reinforce the

 13
requirement that a prosecutor must prove guilt
beyond a reasonable doubt. And the historical origin
of nonunanimity rules—to exclude minority views
and thereby foster inaccurate verdicts—underscores
the vital accuracy-promoting function of the
unanimity requirement.
a. Effective deliberation. The presence of the jury
ensures “the participation of the community in
determinations of guilt.” Ballew v. Georgia, 435 U.S.
223, 229 (1978). The unanimity requirement is a vital
component of that participation because it guarantees
that jurors engage in “real and full deliberation,”
McKoy v. North Carolina, 494 U.S. 433, 452 (1990)
(Kennedy, J., concurring in the judgment), through “a
comparison of views” and “arguments among the
jurors themselves.” Allen v. United States, 164 U.S.
492, 501 (1896). Deliberations that must come to
grips with competing views and seek to persuade
minority perspectives prevent “swift judgments” and
produce more accurate verdicts. See ABA, Principles
for Juries and Jury Trials, Principle 4.B Commentary
(2005) (explaining that “implicit” in the “historical
preference
for
unanimous
juries”
is
the
understanding “that unanimous verdicts are likely to
be more accurate and reliable because they require
the most wide-ranging discussion—ones that address
and persuade every juror”); Kim Taylor-Thompson,
Empty Votes in Jury Deliberations, 113 HARV. L. REV.
1261, 1273 (2000) (citing empirical research
indicating that nonunanimity rules “steer[] jurors
toward swift judgments” that are “less accurate”);
Reid Hastie et al., Inside the Jury 60 tbl. 4.1 (1983)
(finding that twelve-person juries required to reach
unanimous verdicts deliberated for almost twice as

 14
long as those required to reach an eight-member
majority). When “[a] single juror’s change of mind is
all it takes” to provoke discussion and debate, verdicts
are substantially more accurate.
Blueford v.
Arkansas, 566 U.S. 599, 608 (2012).
b. A representative verdict. The unanimity rule
also ensures that a verdict represents the views of the
entire jury, which likewise guards against biased or
inaccurate verdicts. It is “a means of assuring” that
the defendant’s guilt is judged by “an impartial” jury
rather than one “disproportionally ill disposed toward
one or all classes of defendants.” Holland v. Illinois,
493 U.S. 474, 480 (1990). While all jurors must be
impartial, when a jury can render a verdict while
ignoring minority views, a real risk exists that
majority prejudices and biases will silence minority
voices. See Johnson, 406 U.S. at 398 (Stewart, J.,
dissenting) (“[O]nly a unanimous jury … can serve to
minimize the potential bigotry of those who might
convict on inadequate evidence, or acquit when
evidence of guilt was clear.”). Jury unanimity is
therefore “central” to accurate fact-finding: majority
voters may not silence minority voices and convict or
acquit based simply on prejudice, bias, or bigotry.
Indeed, bias and bigotry were what led Louisiana
and Oregon to enact their non-unanimous jury rules
in the first place. As this Court recounted in Ramos,
Louisiana and Oregon “adopted their peculiar rules”
for “racially discriminatory reasons.” 140 S. Ct. at
1401 (emphasis omitted). Louisiana adopted its
nonunanimous verdict rule at a constitutional
convention designed to “establish the supremacy of
the white race” and “sculpted” the rule’s contours “to
ensure that African-American juror service would be

 15
meaningless.” Id. at 1394 (internal quotation marks
omitted). And Oregon adopted its nonunanimous jury
rule “to dilute the influence of racial, ethnic, and
religious minorities on Oregon juries.” Id. (internal
quotation marks omitted). These rules achieved their
intended effect on the outcome of jury trials. See id.
at 1419 (Kavanaugh, J., concurring in part) (noting
that these systems were “thoroughly racist in [their]
origins” and continue to produce “racially
discriminatory effects”). There is a long history of
juries that are not representative of their
communities producing “stark and unapologetic …
race-motivated outcomes.”
Pena-Rodriguez v.
Colorado, 137 S. Ct. 855, 867 (2017); see also Ramos,
140 S. Ct. at 1417 (Kavanaugh, J., concurring in part)
(“[N]on-unanimous juries can make a difference in
practice, especially in cases involving black
defendants, victims, or jurors.”). The racist origins
and effects of nonunanimity rules further confirm
that unanimity is crucial to ensure accurate verdicts.
c. Enforcing the burden of proof. The absence of
unanimity necessarily creates “an impermissibly
large risk” of an inaccurate conviction, Schriro v.
Summerlin, 542 U.S. 348, 356 (2004), because it
allows the State to brand the defendant “guilty” even
though at least one juror—whose views are ordinarily
accorded equal weight to every other’s—has
concluded that the prosecution did not meet its
burden of proof. See Ramos, 140 S. Ct. at 1409
(Sotomayor, J., concurring as to all but Part IV-A)
(explaining that the unanimity requirement
reinforces “the right to put the State to its burden” by
making the government convince each juror of the
defendant’s guilt beyond a reasonable doubt). The

 16
requirement that the prosecution prove guilt beyond
a reasonable doubt is “a prime instrument for
reducing the risk of convictions resting on factual
error.” In re Winship, 397 U.S. 358, 363 (1970). It is
“vital” to “the American scheme of criminal
procedure,” id., because it is the “substantive
constitutional standard” by which guilt or innocence
is determined, Jackson v. Virginia, 443 U.S. 307, 317
(1979).2
The Court has recognized as “self-evident” that
“the Fifth Amendment requirement of proof beyond a
reasonable doubt and the Sixth Amendment
requirement of a jury verdict are interrelated.”
Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). By
forcing deliberations to seek consensus and overcome
doubts of all jurors, unanimity gives the reasonabledoubt standard practical force and effect. It is a
“longstanding tenet[] of common-law criminal
jurisprudence” that “the truth of every accusation
against a defendant should afterwards be confirmed
by the unanimous suffrage of twelve of his equals and
neighbours.’” Blakely v. Washington, 542 U.S. 296,
301 (2004) (emphasis added) (quoting 4 W.
Blackstone, Commentaries on the Laws of England
This Court has never squarely opined on whether
Cage v. Louisiana, 498 U.S. 39 (1990), which held
unconstitutional a jury instruction that creates a
reasonable likelihood of conviction without proof
beyond a reasonable doubt, is a retroactive rule under
Teague. See Tyler, 533 U.S. at 665-66 (holding that
the Court has not yet “made” Cage retroactive); but
see id. at 670-71 (Breyer, J., dissenting) (arguing that
Cage is retroactive under the logic of Teague).
2

 17
343 (1769)). Absent unanimity, a haunting question
will remain about why some jurors were convinced of
guilt when another, equally competent juror was not.
The jury trial thus achieves its truth-seeking purpose
through the twin requirements of unanimity and
burden of proof.
2. Unlike other rules that have failed Teague’s
test, the unanimity rule is not merely “directed
toward the enhancement of reliability and accuracy in
some sense.” Whorton, 549 U.S. at 418 (quoting
Sawyer, 497 U.S. at 243). Rather, it eliminates the
“intolerably high” risk of an inaccurate conviction
that applies whenever the jury cannot agree that the
burden of proof has been satisfied. Id. at 419.
This is borne out by empirical evidence. For
example, one study used a series of mock juries to
examine whether unanimity rules affected verdict
outcomes. Taylor-Thompson, supra, at 1273. Juries
were shown a reenactment of a murder trial that legal
experts agreed did not satisfy the requirements of
first-degree murder. Id. Although many individual
jurors initially indicated a preference for that verdict
in pre-deliberation questionnaires, not one jury that
deliberated under a unanimous verdict requirement
convicted the defendant of first-degree murder,
whereas twelve percent of nonunanimous juries did.
Id. Likewise, another study established that in
approximately ten percent of cases in which juries
must reach a unanimous verdict, the initial majority
will change its vote.
Without a unanimity
requirement, then, “the jury may well have returned
an arguably erroneous verdict.” Id. at 1274. The
shared conclusion of these studies—that absence of a
unanimity requirement creates an impermissibly

 18
large risk of an unreliable verdict—is unsurprising,
given the unanimity rule’s powerful role in forcing
deliberation and consensus.
Ramos thus resembles Gideon, which similarly
sharply reduced the unacceptable risk of an
inaccurate conviction that attaches when a defendant
who wishes to be represented by counsel is denied
representation. Whorton, 549 U.S. at 419. By
contrast, the unanimity rule is quite unlike other
rules this Court has concluded failed to satisfy
Teague’s accuracy requirement because they applied
in narrow circumstances or merely removed a
“theoretical[]” or “remote possibility” of arbitrary
punishment. Beard v. Banks, 542 U.S. 406, 419-20
(2004).3 For example, this Court declined to make
Crawford retroactive because it was “unclear” how a
Confrontation Clause error affects the overall
accuracy of the trial. Whorton, 549 U.S. at 420. The
Crawford rule, the Court noted, was “limited in scope”
and had a mixed effect on the admissibility of reliable
evidence. Id. at 419-20. No such ambiguity exists
See, e.g., Beard, 542 U.S. at 419-20 (discussing rule
against capital sentencing schemes that required
juries to disregard non-unanimous mitigating
factors); O’Dell, 521 U.S. at 167 (discussing rule
establishing capital defendant’s right to inform jury
of parole ineligibility to rebut allegation of future
dangerousness); Gilmore v. Taylor, 508 U.S. 333, 34445 (1993) (discussing rule requiring express
instruction about proper mental state for murder
conviction); Sawyer, 497 U.S. at 241-45 (discussing
rule against prosecutor’s statements diminishing the
jury’s sense of responsibility for capital sentencing).
3

 19
here. The Ramos rule applies in all criminal trials for
serious offenses; pervades the entire trial because it
forces the parties to speak to all segments of the
community, not just a narrow subset; and plays a
critical role in the deliberative process that drives
jurors towards accurate verdicts.
Likewise, the unanimity rule differs from the
requirement that juries find the requisite aggravating
factors in a capital sentencing scheme, which this
Court declined to hold retroactive in Summerlin. As
the Court explained, whether a jury is an objectively
more accurate factfinder than a judge is open to
legitimate debate. Summerlin, 542 U.S. at 356. But
in the case of a verdict rendered by the court or a
unanimous jury, each factfinder has been convinced
beyond a reasonable doubt of the defendant’s guilt.
Not so with a nonunanimous jury, where by definition
at least one factfinder retains reasonable doubt about
the conviction. The accuracy concerns in allowing
verdicts to be rendered by nonunanimous juries thus
far exceed those implicated by permitting a judge to
render a verdict.
The same goes for the Court’s pre-Teague decision
in DeStefano v. Woods, 392 U.S. 631 (1968) (per
curiam). In DeStefano, the Court declined to give
retroactive effect to Duncan, which incorporated the
jury trial right against the States. See id. at 634-35.
But in doing so, the Court applied a test that turns on
factors that Teague does not separately consider.
Instead of focusing on the rule’s importance to
accuracy and fundamental fairness, as Teague
instructs, DeStefano primarily addressed reliance
interests and the practical effects on the
administration of justice should the rule be held

 20
retroactive. Id. Teague rejected this approach,
derived from Linkletter v. Walker, 381 U.S. 618
(1965), and instead adopted a test that accounts for
the importance of finality by applying new rules
retroactively only when they are of utmost
substantive importance to the trial’s fairness and
accuracy. See 489 U.S. at 302-10. To the extent
reliance interests carry any independent relevance,
however, many “well-known state and federal
limitations on postconviction review in criminal
proceedings” will temper the effect of a ruling in favor
of Edwards. See McGirt v. Oklahoma, __ S. Ct. __,
2020 WL 3848063, at *19 (U.S. July 9, 2020). And to
the extent DeStefano analyzed accuracy at all, see
Summerlin, 542 U.S. at 358 & n.6, it is
distinguishable for the same reasons as Summerlin.
The more appropriate pre-Teague comparator is
Brown v. Louisiana, 447 U.S. 323 (1980). Brown
analyzed the retroactivity of Burch v. Louisiana, 441
U.S. 130 (1979), which had invalidated Louisiana’s
nonunanimous jury rule for petty criminal cases.
Applying the same test as DeStefano, the Court held
Burch retroactive.4
The Court noted that a
nonunanimous verdict, which demonstrates the
prosecution’s “inability to convince all the jurors of
the accused’s guilt,” raised serious concerns “about
the reliability and accuracy of the jury’s verdict.” 447
Although styled as a “retroactivity” decision, Brown
addressed whether to apply Burch to a conviction that
was still on direct appeal. See 447 U.S. at 327.
Nonetheless, Brown analyzed the same factors
derived from Linkletter that governed retroactivity
before Teague.
4

 21
U.S. at 333 (plurality opinion). And the Court drew
an explicit contrast to decisions by smaller, yet
unanimous, juries, explaining that a nonunanimous
jury rule “is far more effective in nullifying the
potency of minority viewpoints than is the outright
reduction of a jury to a size equivalent to the majority
that is allowed to agree on a verdict.” Id. at 333 n.12.
The same reliability and accuracy concerns apply to
Ramos’s unanimity rule as well.
B. The Unanimity Requirement Is Essential
To The Fundamental Fairness Of A
Criminal Proceeding.
Ramos’s unanimity rule likewise “alter[s] our
understanding of the bedrock procedural elements
essential to the fairness of a proceeding.” Whorton,
549 U.S. at 421 (quoting Sawyer, 497 U.S. at 242).
Like the right to counsel established in Gideon,
Ramos restored the proper understanding of a basic
constitutional right by incorporating it against the
States. And the enduring role of jury unanimity in
promoting community confidence in the fairness and
integrity of the criminal proceeding further confirms
that it is a “bedrock” procedural protection “rightly
demand[ed] of the adjudicatory process.” Mackey v.
United States, 401 U.S. 667, 693 (1971) (Harlan, J.,
concurring in part).
1. The Court has repeatedly pointed to Gideon as
the paradigm of a rule that altered our understanding
of a fair trial’s basic features. By extending to the
States the Sixth Amendment’s guarantee of
appointed counsel for indigent felony defendants,
Gideon made a “profound and ‘sweeping’ change” to
the law. Whorton, 549 U.S. at 421 (internal quotation

 22
marks omitted) (quoting Beard, 542 U.S. at 418).
Three notable features capture Gideon’s effect on the
legal landscape.
First, before Gideon, it was already understood
that the right to counsel guaranteed by the Sixth
Amendment included the right to the appointment of
counsel for the indigent. See Johnson v. Zerbst, 304
U.S. 458 (1938). Gideon worked no change to that
understanding; it instead extended that right to state
defendants after concluding that the procedural
protection qualified as “fundamental and essential to
a fair trial.” Gideon, 372 U.S. at 342.
Second, the centrality of the right to counsel was
reinforced by its widespread adoption by the States
before Gideon. See Brief of State Governments as
Amici Curiae, Gideon, 1962 WL 115122, at *2 (Nov.
23, 1962) (“Today thirty-five states require counsel in
non-capital cases, which is a strong indication of the
fundamental nature of that right in the modern
view.”). And the right already applied in all capital
cases, regardless of forum. See Hamilton v. Alabama,
368 U.S. 52 (1961). The fact that few States deemed
it acceptable to convict a defendant forced to proceed
pro se attested to the indispensable character of the
right to appointed counsel to a fair trial.
Third, as noted supra at 11, Gideon overruled
Betts v. Brady, 316 U.S. 455 (1942), in which the
Court had previously concluded that the right to
appointed counsel was not a “fundamental” right
incorporated against the States via the Fourteenth
Amendment. See Gideon, 372 U.S. at 342-43. Betts,
the Court concluded in Gideon, constituted an “abrupt
break” with an earlier line of cases recognizing the

 23
right to counsel as fundamental. Id. at 343-44.
Twenty-two States submitted an amicus brief arguing
that the Court’s earlier failure to incorporate the right
was “an anachronism when handed down and that it
should be overruled.” Id. at 345 (quoting Brief of
State Governments as Amici Curiae, Gideon, 1962
WL 115122, at *24).
Thus, Gideon altered the legal landscape by
(1) analyzing an important procedural protection that
already existed for all federal and most state criminal
defendants, (2) extending that right to eliminate an
aberrant rule followed by a small group of outlier
States, and (3) thereby “returning” to earlier
precedent to “restore” a “constitutional principle[]
established to achieve a fair system of justice.” Id. at
344.
Ramos altered the legal landscape in precisely the
same way as Gideon.
First, just like the right to appointed counsel, the
right to a unanimous jury was understood to be a core
feature of the Constitution long before Ramos.
Ramos’s clarification that States infringe upon that
right by employing nonunanimous jury systems
therefore
extended
an
institution
already
“fundamental to the American scheme of justice” to
the States, Ramos, 140 S. Ct. at 1397 (quoting
Duncan, 391 U.S. at 148-50), just as Gideon did. The
very reason the Court concluded that the jury-trial
right applies in state courts is because it “is among
those ‘fundamental principles of liberty and justice
which lie at the base of all our civil and political
institutions.’” Duncan, 391 U.S. at 148 (quoting
Powell v. Alabama, 287 U.S. 45, 67 (1932)).

 24
Second, and unsurprisingly given its fundamental
character, the unanimity right already applied to all
federal and nearly all state criminal defendants
before Ramos incorporated it. See supra at 5-7.
Third, just as Gideon overruled a mistaken
decision to “restore constitutional principles”
embedded in “old precedents,” Gideon, 372 U.S. at
344, Ramos did the same:
it restored our
understanding of the fundamental nature of jury
unanimity by rejecting a prior ruling that was an
“outlier on the day it was decided.” Ramos, 140 S. Ct.
at 1408; see also id. at 1409 (Sotomayor, J., concurring
as to all but Part IV-A) (noting that Apodaca “was on
shaky ground from the start”). To the extent Ramos
announced a “new” rule at all, it altered our
understanding of the essential elements of a fair trial
in much the same way that Gideon did.
2. Beyond its similarity to Gideon in how it altered
the law, Ramos is equally central to achieving
fairness. Both historically and in the modern era,
jury unanimity gives the public confidence that our
criminal justice system works.
The very reason for making the jury the factfinder
in criminal proceedings is to “guard against a spirit of
oppression and tyranny on the part of rulers” by
placing a group of the defendant’s peers in between
the state and the right to exact punishment.
Apprendi, 530 U.S. at 477 (quoting 2 J. Story,
Commentaries on the Constitution of the United
States 540-41 (4th ed. 1873)). Unanimity is a critical
component of that design. See Am. Publ’g Co. v.
Fisher, 166 U.S. 464, 468 (1897) (unanimity was one
of the “essential features of trial by jury at the

 25
common law”). That is not only because unanimity
increases accuracy inside the jury box, see supra at
12-21, but also because it gives legitimacy to the
criminal justice system as a whole. Unanimity is
essential to maintaining public faith in how the
system works. See Brief for American Bar Association
as Amicus Curiae, Ramos, 140 S. Ct. 1390, 2019 WL
2549746, at *21 (June 18, 2019) (“Citizens consider
unanimous juries to be more accurate, more thorough,
more likely to account for the views of jurors holding
contrary views, more likely to minimize bias, better
able to represent minorities, and fairer.”); Robert J.
MacCoun & Tom R. Tyler, The Basis of Citizens’
Perceptions of the Criminal Jury:
Procedural
Fairness, Accuracy, and Efficiency, 12 L. & Hum.
Behav. 333, 337, 338 tbl.1 (1988). By ensuring that
the verdict represents the reasoned judgment of the
entire jury, the rule strengthens community
acceptance of the outcome.
That legitimacy is especially critical in the context
of this Court’s ongoing efforts “to eradicate racial
prejudice from our criminal justice system.”
McCleskey v. Kemp, 481 U.S. 279, 309 (1987). The
jury is “a criminal defendant’s fundamental
‘protection … against race or color prejudice,’” id. at
310, and the requirement of unanimity is essential to
that purpose.
As recounted supra at 14-15,
Louisiana’s nonunanimous jury rule was specifically
designed to silence African-American jurors and
secure racially motivated verdicts. “In the years
before and after the ratification of the Fourteenth
Amendment,
it
became
clear
that
racial
discrimination in the jury system posed a particular
threat both to the promise of the Amendment and to

 26
the integrity of the jury trial.” Pena-Rodriguez, 137
S. Ct. at 867.
“[B]latant racial prejudice is
antithetical to the functioning of the jury system,”
even independent of its effect on the verdict’s
accuracy. Id. at 871. Thus, “the central purpose of
the Fourteenth Amendment was to eliminate racial
discrimination emanating from official sources in the
States,” McLaughlin v. Florida, 379 U.S. 184, 192
(1964), not just to improve the accuracy of criminal
proceedings, but to restore public confidence in the
justice system more generally.
Ramos secures the Fourteenth Amendment’s
promise by eliminating a vestige of racial prejudice
from that era that cast an indelible stain on the
criminal justice system. See Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 628 (1991) (“Race
discrimination within the courtroom raises serious
questions as to the fairness of the proceedings
conducted there,” “mars the integrity of the judicial
system[,] and prevents the idea of democratic
government from becoming a reality.”); see also
Powers v. Ohio, 499 U.S. 400, 404-07 (1991)
(recounting the Court’s efforts to eliminate racial
prejudice from the jury system to further the jury’s
role in “preserv[ing] the democratic element of the
law” and “ensur[ing] continued acceptance of the laws
by all of the people”). Because of the persistence of
race discrimination in the jury system over many
decades, see Flowers v. Mississippi, 139 S. Ct. 2228,
2238-41 (2019), it is of the utmost importance to apply
Ramos’s protections to convictions rendered in the
years when that essential safeguard was missing.
In sum, because Ramos works a fundamental
change to a structural protection that is emblematic

 27
of American justice, it merits retroactive application.
All defendants—those convicted before Ramos as well
as those tried after—are entitled to enjoy this
quintessential safeguard. Amici urge the Court to
hold that the right to a unanimous jury applies
retroactively on collateral review.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted,
SETH P. WAXMAN
SAMUEL M. STRONGIN
NATHANIEL W. REISINGER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000

MICHAEL R. DREEBEN
(Counsel of Record)
JEREMY R. GIRTON
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006
(202) 383-5300
mdreeben@omm.com

ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007

YAIRA DUBIN
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
MELISSA C. CASSEL
O’MELVENY & MYERS LLP
Two Embarcadero Center
28th Floor
San Francisco, CA 94111

Counsel for Amici Curiae
July 2020

 APPENDIX

1a
APPENDIX A
LIST OF AMICI CURIAE1
Lanny A. Breuer
Assistant Attorney General, Criminal Division,
United States Department of Justice (2009-2013)
Special Counsel to President William J. Clinton
(1997-1999)
Assistant District Attorney, Manhattan, New York
(1985-1989)
Walter Carpeneti
Chief Justice, Alaska Supreme Court (2009-2012)
Justice, Alaska Supreme Court (2009-2012)
Judge, Alaska Superior Court (1981-1998)
Michael Cody
Tennessee Attorney General (1984-1988)
United States Attorney, Western District Tennessee
(1977-1981)
M. Jerome Diamond
Vermont Attorney General (1975-1981)
Fernande R.V. Duffly
Justice, Massachusetts Supreme Judicial Court
(2011-2016)
Judge, Massachusetts Appeals Court (2000-2010)

Institutional affiliations are provided for identification purposes only. The views expressed in this brief do not reflect the
views of the institutions with which amici are affiliated.

1

 2a
William A. Edmondson
Oklahoma Attorney General (1995-2011)
District Attorney, Muskogee County, Oklahoma
(1983-1992)
Mark Earley
Virginia Attorney General (1998-2001)
Robert B. Fiske, Jr.
United States Attorney, Southern District of New
York (1976-1980)
Assistant United States Attorney, Southern District
of New York (1957-1961)
Norman Fletcher
Chief Justice, Georgia Supreme Court (2001-2005)
Justice, Georgia Supreme Court (1989-2001)
Special Assistant Attorney General of Georgia (19791989)
Charles Fried
United States Solicitor General (1985-1989)
Associate Justice, Supreme Judicial Court of
Massachusetts (1995-1999)
Nancy Gertner
Judge, United States District Court for the District of
Massachusetts (1994-2011)
Wallace B. Jefferson
Chief Justice, Texas Supreme Court (2004-2013)
Justice, Texas Supreme Court (2001-2004)

 3a
Timothy K. Lewis
Judge, United States Court of Appeals for the Third
Circuit (1992-1999)
Judge, United States District Court for the Western
District of Pennsylvania (1991-1992)
James Nelson
Justice, Montana Supreme Court (1993-2012)
Marilyn Hall Patel
Senior Judge, United States District Court for the
Northern District of California (2009-2012)
Chief Judge, United States District Court for the
Northern District of California (1996-2004)
Judge, United States District Court for the Northern
District of California (1980-2009)
Stephen D. Rosenthal
Virginia Attorney General (1993-1994)
Chief Deputy Attorney General, Virginia (1992-1993)
William F. Sheehan
Assistant to United States Solicitor General (19751978)
Mark Shurtleff
Utah Attorney General (2001-2013)
Robert Spagnoletti
District of Columbia Attorney General (2003-2006)
Assistant United States Attorney, District of
Columbia (1990-2003)

 4a
Larry D. Thompson
Deputy Attorney General of the United States (20012003)
United States Attorney for the Northern District of
Georgia (1982-1986)
Independent Counsel (court-appointed) (1995-1998)
Anthony F. Troy
Virginia Attorney General (1977-1978)
Michael Wolff
Chief Justice, Missouri Supreme Court (2005-2007)
Justice, Missouri Supreme Court (1998-2011)
Grant Woods
Arizona Attorney General (1991-1999)