STATE v. DOTSON (2020)

Writ application denied.

I would grant the writ to clarify that the Supreme Court's recent decision in Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020) should be applied retroactively to cases on state collateral review. It is time we abandoned our use of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) in favor of a retroactivity test that takes into account the harm done by the past use of non-unanimous jury verdicts in Louisiana courts.

In 1992, we adopted Teague’s test for determining whether decisions affecting rights of criminal procedure would be retroactively applied in cases on state collateral review. State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296 (La. 1992). Teague only requires retroactive application of a new rule if it is a “watershed rul[e] of criminal procedure” that “implicates the fundamental fairness [and accuracy]” of the criminal proceeding. Teague, 489 U.S. at 311–312, 109 S.Ct. 1060.

In my view, Ramos announces a watershed rule implicating fundamental fairness and accuracy. “The Sixth Amendment right to a jury trial is ‘fundamental to the American scheme of justice’ and incorporated against the States under the Fourteenth Amendment.” Ramos, 140 S. Ct. at 1397 (citing Duncan v. Louisiana, 391 U.S. 145, 148-50, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). The law that Ramos struck came from the post-Reconstruction Louisiana Constitutional Convention of 1898, which sought to “establish the supremacy of the white race.” Id. at 1394. It “approved non-unanimous juries as one pillar of a comprehensive and brutal program of racist Jim Crow measures against African-Americans, especially in voting and jury service.” Id. at 1417 (Kavanaugh, J., concurring in part). The point was to make it easier to convict African American defendants at criminal trials, even when some of the jurors themselves were African American. And it worked. Data contained in the Ramos record shows that votes of Black jurors have been disproportionately silenced and that Black defendants have been disproportionately affected by non-unanimous verdicts. Approximately 32% of Louisiana's population is Black, yet 69.9% of prisoners incarcerated for felony convictions are Black. Clearly our longtime use of a law deliberately designed to enable majority-White juries to ignore the opinions and votes of Black jurors at trials of Black defendants has affected the fundamental fairness and accuracy of proceedings.

There are some rules of procedure untethered to our history of discrimination against African Americans where the question of retroactive application may carry less weight. But then non-unanimous jury rule was intentionally racist and has disproportionately affected Black Louisiana citizens for 120 years. There is no principled or moral justification for differentiating between the remedy for a prisoner convicted by that law whose case is on direct review and one whose conviction is final. We should abandon our use of the Teague test, which—informed by federalism concerns—has never had any logical application in state court anyway, and formulate a new retroactivity test for Louisiana that takes into account the racist origins or disproportionate impact of a stricken law. We should not fear a “crushing” “tsunami” of follow-on litigation.” Ramos, 140 S. Ct. at 1406. The cost of giving new trials to defendants convicted by non-unanimous juries is much less than the social cost of perpetuating—by our own inaction—a deeply-ingrained distrust of law enforcement, criminal justice, and Louisiana's government institutions.

For these reasons, which I explain further in State v. Gipson, 19-KH-1815, regardless of the words or legal grounds a defendant uses to challenge his conviction, I believe Ramos should apply to anyone convicted by a non-unanimous jury.

Johnson, C.J., would grant and docket and assigns reasons. Weimer, J., would grant and docket.