Stare decisis: contrasting judicial opinions in Ramos v Louisiana

In my post of 16 April I suggested that ascertaining the ratio of a multi-judge case can be entertaining. Who could have guessed how great the entertainment is when a bench of nine divides over the ratio of a case decided by the same Court?

This was the amusing part of Ramos v Louisiana USSC No 18-5924, April 20, 2020. The case holds - you could call this its ratio - that the Sixth Amendment right to jury trial requires that in the States (as with the federal courts and the courts of the territories) juries must be unanimous in their verdicts.

Of more general interest is the Court’s treatment of its 1972 decision Apodaca v Oregon, 406 U.S. 404. This decided that majority verdicts in State courts are permitted by the Sixth Amendment. On this the Court split 5-4, the 4-4 stalemate being broken by the fifth judge, Powell J. His reasoning was idiosyncratic, to say the least. He said that the Sixth Amendment means one thing for the federal courts and the courts of the territories, and another for the state courts.

Suppose, as occurred here, the reasoning of the other judges was on two competing lines, each cancelling the other out. When this sort of division occurs, does the idiosyncratic reasoning bind subsequent Courts? It would if it were ratio. If the idiosyncratic reasoning, being ratio, has no basis in precedent, can subsequent courts simply say it was wrong even if it has been applied for nearly 50 years? Or does the idiosyncratic opinion of one judge bind subsequent benches of nine judges?

Although following precedent, stare decisis, is extremely important for the stability of law (see the opinion of Kavanaugh J, emphasising that in respect of constitutional precedents, a decision to overrule should consider whether they are egregiously wrong, whether they have they caused social harm, and whether overturning would cause undue social disruption), human ingenuity is such that a later court can always find a way to decline to follow a previous decision. The Court did this in Ramos. The dissenters were Alito J, joined by Roberts CJ and Kagan J. They applied Apodaca and would have held that majority verdicts are permissible in state courts. Three of the majority judges, Gorsuch J, joined by Ginsburg and Breyer JJ would have preferred to have given Apodaca no precedent value. But, joined by Sotomayor J, and by Kavanaugh J, they held that Apodaca was a precedent but that it was wrongly decided. Thomas J concurred in the result, that unanimous verdicts are required in state courts, but for different reasons: he drew upon the Privileges and Immunities Clause of the Fourteenth Amendment rather than its Due Process Clause, and on that basis he distinguished Apodaca. The dissenters, while not necessarily thinking Apodaca was correctly decided, regarded it as a precedent that should be followed, Alito J joined by Roberts CJ said that it should be followed because of the reliance that had been placed on it, while all three dissenters agreed that its ratio is that when a defendant is convicted in a state court and at least 10 of the 12 jurors vote to convict, and the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails. This narrow view of the ratio enabled these judges to disregard Powell J’s idiosyncratic reasoning while applying his conclusion.

The majority decision brought Louisiana (and Oregon) into line with the other States. In any event, Louisiana has enacted a requirement for unanimous verdicts in trials for crimes committed on or after 1 January 2019 (see Kavanaugh J), so the decision can’t have been a great surprise for anyone.

The unanimity requirement cuts both ways, although this is seldom pointed out. A defendant can’t have an acquittal unless all jurors agree on that verdict. When a jury can’t reach a verdict a retrial is usually ordered. So yes, unanimity is a safeguard against a wrongful conviction, but it is also an obstacle to an acquittal.

For those who are interested in whether the Supreme Court is going to overturn Roe v Wade, Ramos v Louisiana provides some insight into judicial attitudes to precedent.

Ramos is also worth looking at for its various references to the history of jury trials.

And here is an insight into the judicial process, by Edward Lazarus in his examination of the judicial culture of the United States Supreme Court, Closed Chambers – The Rise, Fall, and Future of the Modern Supreme Court (1998), pp248-249:

“The most we can expect and what we must demand from the Court as it expounds the law is an integrity born of consistency and sincerity. Legitimate constitutional arguments are not limitless; they may take several forms familiar to law. They may be based on history, on precedent, on the text, on inferences from the way our government is structured, on appeals to ethics, or on prudential considerations about the consequences of a decision. Often, these modes of argument are used in combination, melded into a convincing whole. And none is perfect for every circumstance. Deciding which modes of argument best suit the facts and circumstances of a given case is both an inevitable moral choice and the essence of judging.”

Police retention and use of unlawfully obtained information: Smethurst v Commissioner of Police [2020] HCA 14

If the police wrongfully seize a cell phone and make their own copy of the information stored on it, can the owner of that information require the police to destroy their copy and not make it available to a prosecuting authority?

This had to be decided in Smethurst v Commissioner of Police [2020] HCA 14, where the cause of action was in equity: an application for a mandatory injunction, which would order the police to cease their retention of data they had copied to their own storage device. That remedy is, where it is available, discretionary. It was sought in order to prevent the police from continuing to benefit from the consequences of their trespass by unlawful searches.

These were not criminal proceedings, and what the data disclosed was unknown. However, the plaintiffs had conceded that there might be prejudice to them with respect to possible criminal proceedings [47]. In broad and vague terms, the plaintiffs – a journalist and a newspaper publisher – might (and it’s a big “might”) have breached national security in obtaining information used as the basis for publications warning people about extensions to governmental powers of surveillance.

A full bench of seven judges grappled with the issues.

The majority comprised a joint judgment by Kiefel CJ, Bell and Keane JJ, and a concurrence in the result by Nettle J who gave slightly different reasons.

The joint judgment reasoned that there was no juridical basis for an injunction here, but even if there was, discretionary considerations would deny a grant because as criminal conduct was suspected there was a public interest in revealing criminality [99]. Just as in criminal cases improperly obtained evidence may be admissible, here the impropriety was not in itself sufficient to foreclose use of the evidence [100], [103]. This prospect of disclosure of criminal conduct was sufficient to decline the discretionary relief that was sought [104]. Injunctions protect legal rights, and here the plaintiffs had no right to protection from being investigated in relation to an offence [85]. This was not a case where the Court had to decide whether there is a common law tort of breach of privacy, as the plaintiffs did not seek to have that determined [90]. 

Nettle J, whose concurrence determined the outcome, agreed that potential disclosure of criminality weighed against granting the injunction [160]. He emphasised that the error by the police was honest, which meant that retention of the information was not so obliquitous so as to be inequitable [158] (a point disagreed with by Edelman J at [262]). Nettle J also considered that weighing against the injunction was an undertaking by the Commissioner of Police to only use the information as if it had been lawfully seized, which meant that if no offending was disclosed the items would all be returned without prejudice to the plaintiff [161] (also disagreed with by Edelman J at [269]). In contrast to the plurality, Nettle J thought it was not relevant to draw upon the public policy concerns surrounding discretionary exclusion of improperly obtained evidence in criminal proceedings, as here there was insufficient information before the Court about criminality [162].

Dissenting judgments were delivered by Gageler, Gordon and Edelman JJ.

Gageler J found the juridical basis for relief here in the tort of trespass [119], drawing upon the need to adapt the common law [120], [124], [126]. He discussed the guiding principles governing the exercise of the discretion concerning equitable relief [134], and emphasised that an injunction need not prevent ongoing investigation of criminality [139].

Gordon J agreed that terms could be devised [188], as did Edelman J [271]. Gordon J put the basis for relief as the excess of power [185], saying that an injunction would merely require the police to obey the law [190]. The police could still seek further search warrants [188], and the discretionary considerations favoured the issuing of an injunction [192]-[197].

Edelman J – in an impressive survey of the equitable remedy of injunction - stressed the inadequacy of the alternative common law remedy of damages [252] (a point recognised by all judges), although he acknowledged the strength of Nettle J’s reasoning at [185]-[162] which suggested that damages could be an adequate remedy. But here, Edelman J reasoned that damages would not be adequate because the statutory protections surrounding the use of lawfully seized material did not apply to unlawfully seized material, and damages would not remedy this absence [263]-[264]. It was also important, in determining the discretion, to consider the police perspective [266]. There was a paucity of facts as to criminality here [267], and the police undertaking to act as if the search warrants had been lawful did not truly reverse the consequence of their unlawful action [269]. An injunction could be drawn in terms that made it subject to the execution of a lawful search warrant [271]. This would not be against the public interest [277]-[279].

So, all the plaintiffs in this case were left with was (translating the equitable remedy of certiorari, and putting it in general terms) a finding that a warrant to search the journalist’s home was invalid. That would, if there were ever to be criminal proceedings in which information retained by the police in this case was to become the subject of discretionary exclusion, be one of the factors for consideration on that admissibility issue.

The exercise of determining the ratio decidendi of this aspect of the case (there are other aspects which will be of great interest to Australian lawyers, including the requirements for a valid search warrant, and some constitutional issues concerning injunctive relief) is one that could entertain students for several minutes. I shouldn’t offer spoilers, other than to say that a critical fact is that the police here acted in good faith in carrying out the search and seizure and copying of the electronic information. Had there been bad faith, Nettle J may have favoured issuing an injunction [158] and so joined in the result favoured by Gageler, Gordon and Edelman JJ to form a different majority. It seems that Kiefel CJ, Bell and Keane JJ would still have refused an injunction because the trespass was complete and the plaintiffs could point to no legal right for the Court to protect [68], [76], [77], [85].

Unreasonable verdict and reasonable doubt

In Pell v The Queen [2020] HCA 12 (7 April 2020) the High Court made some important distinctions between fact-finders and appellate courts considering conviction appeals. At [37]:

“... Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”

And, when assessing the reasonableness of a verdict of guilty, [39]:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnote omitted)

This reflects the need for a fact-finder to keep an open mind until all the evidence has been given, and after the addresses of counsel for each side and the judge’s summing up and instructions on the law have been delivered. It would be wrong, for example, for a juror to think, after hearing the evidence of a prosecution witness, that that evidence was convincing and sufficient on its own to prove guilt beyond reasonable doubt. So, in referring at [39] to the appellate court’s proceeding on the basis that the jury found the evidence of the complainant to be credible and reliable, the High Court was not suggesting that the jury could properly have done that peremptorily in isolation. Really, the appellate court asks, should the jury have recognised that there was a reasonable doubt about guilt?

The appellate court does not ordinarily need to hear or view a recording of the evidence at trial (at [36]): 

“...There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional ....”

So, what about the facts? I know it is said that “absence of evidence is not evidence of absence”, but that is not a rule of law. The strange thing about this case is that the alleged criminal behaviour, being unusual and surely of a compulsive nature, was accompanied by so few complaints. If it had happened as alleged, you would expect there to be a multitude of similar complaints covering criminality over many years. Frequent association with young choristers would, one might suppose, make repetition more likely. True enough, juries are told to consider only the evidence that has been given, but they are also told to use their common sense and experience when assessing it. Consistently with this, a defendant’s good character is admissible as evidence to challenge the credibility of an allegation. In this case the High Court held that the jury should have had a reasonable doubt about guilt, but we may well think that on a common sense view the probability of innocence is virtually certain.

Update: For a full critique of the intermediate appellate court decision in Pell, see Dennis J Baker, "Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations" (2020) 84(1) Journal of Criminal Law 1.