Supreme Court wrestles with non-unanimous juries case

FILE - In this Nov. 5, 2020, file photo the Supreme Court is seen in Washington. The Supreme Court on Wednesday, Dec. 2, struggled with whether to require new trials for potentially thousands of prisoners in Louisiana and Oregon who were convicted by non-unanimous juries before the court barred the practice last year. (AP Photo/J. Scott Applewhite, File)
FILE - In this Nov. 5, 2020, file photo the Supreme Court is seen in Washington. The Supreme Court on Wednesday, Dec. 2, struggled with whether to require new trials for potentially thousands of prisoners in Louisiana and Oregon who were convicted by non-unanimous juries before the court barred the practice last year. (AP Photo/J. Scott Applewhite, File) (Copyright 2020 The Associated Press. All rights reserved)

WASHINGTON – The Supreme Court on Wednesday struggled with whether to require new trials for potentially thousands of prisoners who were convicted by non-unanimous juries before the court barred the practice earlier this year.

The high court ruled 6-3 in April that juries in state criminal trials must be unanimous to convict a defendant. Previously, Louisiana and Oregon as well as the U.S. territory of Puerto Rico had allowed divided votes to result in convictions. In striking down the practice, the court said Louisiana and Oregon had originally adopted their rules for racially discriminatory reasons. Now, juries everywhere must vote unanimously to convict.

But the Supreme Court's decision affected only future cases and cases in which the defendants were still appealing their convictions when the high court ruled. The question for the court now is whether the decision should be made retroactive. That would benefit prisoners convicted by non-unanimous juries whose cases were final before the court's ruling, but the states and federal government said it would also be incredibly burdensome.

Several justices noted the very high bar past cases have set to making similar new rules retroactive while also suggesting this case might clear it. And the case did not seem to be one that would split the court along traditional liberal-conservative lines.

“Why isn't unanimity basic?” Justice Stephen Breyer asked during arguments, which the court heard by phone because of the coronavirus pandemic.

But Justice Samuel Alito expressed skepticism that the court should make this decision retroactive. He suggested the court has been hard pressed to find a similar case that should be made retroactive, comparing it to a “quest for an animal that was thought to have become extinct, like the Tasmanian tiger.”

And Justice Brett Kavanaugh noted that the court has “a long line of cases ... where we have declined to apply a new rule retroactively” once cases have become final.

Louisiana, Oregon and Puerto Rico could be forced to retry hundreds or thousands of people if the court’s decision were to be made retroactive, Louisiana has said. And several justices pressed the lawyers before them on how many people might need to be retried, with one lawyer saying it could be 1,000 to 1,600 in Louisiana alone.