CADE v. STATE (2021)

Writ application denied.

I maintain my position that it is an open question as to whether Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), may be retroactive under Louisiana law. See Edwards v. Vannoy, ––– U.S. ––––, 141 S. Ct. 1547, 1559 n. 6, 209 L.Ed.2d 651 (2021); Taylor v. Whitley, 606 So.2d 1292, 1296 (La. 1992). Nevertheless, practical realities dictate that not every defendant purportedly convicted by a non-unanimous jury would benefit. One major limitation is proof.

Defendants still generally bear the burden to show they have been convicted by a non-unanimous jury – this is primarily done with jury polling forms. Where a defendant requests the production of polling forms, the trial courts are obligated to produce them with the jurors’ information redacted. See, e.g., State v. Deckelman, 21-0427 (La. 6/8/21), 317 So.3d 315; State v. Charles, 21-0466 (La. 6/1/21), 316 So.3d 827. Of course, defendants may have other means of proof.

Here, the defendant did not poll the jury, the trial court performed its obligation in searching for possible polling forms, and the defendant has produced no other evidence to support his claim for Ramos relief. Accordingly, further assistance from this Court or the courts below would be futile.

Griffin, J., additionally concurs and assigns reasons.