as louisiana is the only place that would jail you for natural life on a non unanimous verdict ultimately the question before the court is why should the th amendment mean something less to mr edwards members of the  divided on how to reconcile the fractured decision and oppa daca with an existing precedent this division clear to pass the holding that ramos applies retroactively undertake to pass for providing a remedy to those jailed by a scheme we know was morally wrong at its inception and is unconstitutional for some justices apodaca was dead on arrival census deciding votes rationale was foreclosed by precedent for these justices provided no presidential value and ramos as an old rule dictated by president president that simply restored the six amendments full measure either through the due process clause or the privileges or immunities clause of the th amendment for other justices apodaca was such a wrongly decided decision that it needed to be explicitly overruled for these members of the court drama should be a watershed rule requiring retroactivity as this restores fairness and accuracy to jury trials in  both past remedy something we all know to be wrong both paths will provide the promise of a fair trial to always managed mr chief justice i'm ready to entertain questions from the court thank you  think your biggest hurdle is the court's decision in stephano where we held that the jury trial right itself should not be applied retro actively what we're talking about here is a subordinate right to a unanimous verdict on the lesser included right how do you how do you get around the stephano there's two considerations i would like to bring to the court's attention days to follow itself was just dealing with the judge's ability to make a decision and as this court noted in duncan you cannot say whether or not necessarily that a judge rendered decision is more or less accurate than a jury rendered decision our case here deals with a and can should enter to sees what goes on in the jury room i will also note that i think the more analogous case mr chief justice as the brown decision it to provide at the same retroactivity standard that was incorporated and east to follow which relied heavily on thought that apodaca was a precedent that was being overruled and therefore it was the most compelling evidence that it was the new rule where those five justices on reasonable well when we get to the resembles the standard of the jurors it's an objective criterion i think that we can all agree that the th amendment requires a unanimous jury and that we can all agree that the bill of rights are fully incorporated to the states at this point normally the reasonable jurist standard goes hand in hand with being dictated by precedent but apodaca was such a bizarre decision that it broke those two hands apart and that's why it isn't a unique universe of one mr chief justice i think particularly given your answer on the fano you have something of a burden of the stablish saying that the unanimous jury is is necessary to avoid you know and impermissibly large risk of an inaccurate conviction what is your best empirical evidence for that of those cases were eligible for a non unanimous verdict and from that population of have half of those or one quarter of the sixty five dollars or actual e i would also turn the court's attention to a law review article published in notre dame after getting in vs when wright was decided written by a crash it's the right to a law or the end potations of gideon versus wainwright crash was  so the system accounted for that if media is going to be our watershed rule we can look to see the numbers there and they are radically different from what we have here and so you have a system where we look to see whether or not the system itself was fair and you're not anonymous jury is not fair because it flies and the historical tradition of this country thank you counsel justice thomas thank you mr chief justice counsel and we agree this well not sense t but when we go back to the brown decision that was applied and i was applying birch retroactively dealt with the same issue of unanimity and of the louisiana jury trial and the studies are a mixed bag and it really doesn't move very much one way or the other but we have to look at whether or not the process seems fair our tradition puts together the reasonable doubt and unanimous jury together we want people to come together as a community to be convinced beyond a reasonable doubt that this person needs to be deprived of their liberty and  o there are studies that suggest that the effectiveness of deliberation is simply cut short when you don't have to have a unanimous jury and that systemically leads to the possibility of an accurate conviction when we go back to those gettin numbers out of florida just mention i mean certainly not all of the four thousand five hundred dollars people would have been convicted but we're talking about more than half of the population in the jail at that time it leaves room for the premise that the system can be an accurate and unfair even though it may end in many instances leave lead to conceivably the right decision but i don't know how you can how it translates right to counsel versus while this court has acknowledged apodaca for quite some time i do not believe that oppa doco was used for what it's being argued to stand for and we're going to have a watered down bill of rights  you know if you let me change go a little bit different a right let's assume that the court finds that it is retroactive how do you get around the  case will go back down to the louisiana courts where we will have a viable claim to make on state post conviction secondly when we go down to st of all i don't necessarily all agree that there was a decision on the merits for starters for purposes of the one but even if the court one time to think there was one good to see to a subsection one new rules made retroactively by the united states supreme court would allow petitioners like mr  prior thank you how many approximately what's your rough estimate of if you win how many new trials in louisiana will be called for at this point we believe the maximum population is one thousand six hundred people i do not believe that all of those one thousand six hundred people will be able to establish that they had a non unanimous jury i think i mean he did a good job breaking down the statistics as probably closer to a one thousand and from that there's different subsets some of these people would either be eligible for parole soon or the will benefit from a change on the visual offender law or they are also in jail for a i do not know the exact number that varies by jurisdiction but i believe there is one hundred and forty five thousand dollars cases filed per year and we're really looking at our estimates of maybe two dollars to three dollars cases per prosecutor s the system is more than capable of accommodating this type of caseload thank you justice alito this whole quest for watershed rules is rather strange how we keep saying there were some in the past that were discovered but is clear that there are any new any new ones that haven't yet been discovered but you know maybe just maybe there might be a watershed rule after there that hasn't been discovered it's i mean it's sort of reminds me of something you see on some t deep in the farce of tasmania somebody sees a footprint in the mud or owl in the night or some fleeting thing running by and they say aha there still is one that exists so i mean all of that is a a wind up to getting back to the question that justice thomas asked why should we decide whether this t v exception applies to a hay vs petition brought by a state prison court can be litigated by another portion of a dab of secondly i do believe there is a legit legitimate disagreement as to whether or not this case was actually decided on the merits and state post conviction my recollection of what we had happened on the record below is that we were summarily dismissed for no legal or factual basis so i don't believe the the merits were fully addressed another oddity about applying the watershed will inquiry in this particular case is that the test for watershed rule depends pretty heavily on justice harlan's decision in his opinion in the maquis case which where he relied on exactly the rationale of the concept of order liberty  rule there are so many parallels between this case and get enough both recognized the fundamental bedrock principles and both had to deal with cases that were inconsistent with those principles and  restore the fundamental rights at issue for good and it was the right to appoint a counsel and here is the unanimous jury requirement why isn't part of a watershed rule inquiry whether it's consistent with the word liberty that the six a memo wasn't fully incorporated to the states and we know that to be wrong and he thought it was incorporated for what reason he didn't believe that the six amendment was was fully incorporated through the d are in jail currently whether it's a year old or not or post past there at the time is that the total prison population those you mean by prison population if you mean that are those the people that are in jail yes justice sotomayor all right and so your statistic is based you're saying some of them may not be able to prove that they were convicted by a non unanimous verdict  able to establish that yet but even for purposes of just assuming that all one thousand six hundred could prove it it is still a burden on the petitioner to show that they had a not anonymous jury and there are many instances we may find the lawyers and would have a very steep climb to get me to think that ramos was anything other than a new rule so i want to focus on the watershed and cory and in that inquiry we've talked a lot about accuracy is innocent people from being convicted or at least that's just not certain so i guess what i'd like to ask you is whether you or i mean number one do you just contest all of everything that i just said but number two are you talking about accuracy in some different sense your st sentence to us was a verdict by a non unanimous jury is no verdict at all and then you talk about a verdict can be inaccurate and unfair even though it leads to the right decision and i guess what i'm asking is are you talking about and do you think in our cases we've been talking about accuracy in different sense than simply the reduction of errors in whatever direction i do not think that a the six amendment jury trial right to be go back again to get in which this court has recognized as the exemplar for the watershed rule if the figures in the notre dame article more accurate we're talking about three times as many more people as we have affected in the wheezy ana and we're also talking about half of that prison population where here we may be talking about five percent i do believe it is just a systemic approach to say whether or not batson a bachchan case is something where you're looking at the particular actions of an individual prosecutor in an individual case and bachan requires speculation we don't know if there would have been a unanimous verdict be talking about moving forward the burden will be on the petitioner to show i actually have a not a unanimous jury and so it is measurable whereas batson was not i do think that the racial origins anonymous jury is something to consider it shows that this type of system was set up for the purpose of not being accurate for the purpose of not being fair and even though the state has tried to cleanse itself it still has a negative racially disproportionate impact today justice research good morning counsel like start with your st argument that ramos did not announce a new rule  how how how can we get to where you want us to go in that light do we account for the dissenters position should we discount the dissenters position even if we do discount that what about the fact that the majority itself had different views i would have two responses st i believe the opinion and ramos did set up to pass for the court to decide retroactivity secondly i don't while i respect the dissenters viewpoint and realize that maybe how they feel today i do not necessarily count the votes and assent to say explicitly we've overruled ram watered down bill of rights so that the two lines of precedent there six a memory card is unanimity and that the th amendment is fully incorporated to the states at least to one logical conclusion and that is that therefore if we are to follow it to go to take a was considered a fundamental bill of rights and married up to something that was foreclosed as at the time the opinion was given and i just don't think that is something you'll ever see ever again i think we are sit down people to explain that these are the two lines of president louisiana has a ten to system do you think that would hold water i think people would say no if they did not know about the op ed aka decision i sure hope you're right with respect to the watershed route your alternative route he'd gotten different variations of the question but i guess the way  i'd put it is that t holds out this promise that there is going to be some watershed rule and and so the gideon is an example which predates t v of course but then ever sense we haven't we haven't found a single one is this a false promise if it is should we just admit it's a false promise if it isn't a false promise than what counts what principle counts the stuff that the stefano doesn't count bring doesn't count bad and doesn't count crawford doesn't count and that's why i think that rama as more analogous to get in than any of the other cases that we have decided in the past both decisions restored our understanding of fundamental bedrock principles both of these decisions took away a case that deviated from those prior precedents and because you'll never see an opinion like apodaca again we can all rest assured th counsel i had been concerned that your approach would require us to chart a new path on retroactivity as justice thomas and justice alito pointed out  we have a long line of cases and you were just discussing with justice corsets post cases such as wharton about the crawford rule and many others where we have declined to apply a new rule final acquitted the jury trial right itself to get him justice douglas and justice black in their descent and i just want to give you an opportunity  the jury trial right not applying retroactively we bought the unanimous jury right applying retroactively collateral review seems like an asymmetry to two responses so that st of all i think we have to remember that day stuff was decided by a different standard retroactivity than take and the three factors in existence at that time two of them were heavily related weighted towards the states reliance and interest that was law reliance by law enforcement and the overall effect on the administrative as ministration of justice whether retroactive application those t required the court to say that a judge made a decision is somehow so inconsistent and accuracy and fairness then with a a jury decision and that is not been  important important one in thinking about how the nine unanimous jury actually operated in practice and i think bateson is a way and mark opinion and one of them more important opinions  in this court's history in terms of ensuring that trials occur without racial discrimination yet and now and the hearty would not apply that and retroactive i know justice kagan reference this with you and that's i guess another asymmetry i'm concerned about here in this case and your distinction of the hearty would be so i'm sorry my distinction your honor would be that alan versus hardy was also using the pre taped standards that heavily relied upon the reliance factors of the state and secondly with again with bats and challenges that are hard to measure it is do not know if a bastion compliant jury would or would not have found guilty beyond a reasonable doubt whereas here i can measure it yeah that's i think that's a fair and justice stevens and they would have applied birch retroactively only on direct to cases pending on iraq not on collateral any response to that yes you know with the noses now we do really make that distinction between direct and collateral review brown was a lot richer by the fact that the standard at the time applied the same standards on direct and on collateral review i think the  of the bedrock procedural element prong the fairness part of the proceeding because you kept saying well it's possible for a nine unanimous jury verdict to have reached the ri result i may be convicting someone who actually in fact had committed the crime while still being unfair can you can you help me understand a little bit more how your two prongs are distinct what accuracy means sea component is we're looking to see whether or not the the the system of how the trial took place was fair and gideon versus wainwright we have said that all of these cases where people were not represented by counsel was not fair but i can't tell you today how many of those people would have been exonerated well it may not be able to identify a specific number but i mean i think we'd get in with saying is that there is a significant chance that someone may have been he otherwise would not have been or when it was reached the wrong result i guess i don't understand you know you've got statistics saying that in louisiana as many unanimous verdict defendants have been exonerated or even more than those who've been convicted by non unanimous jury or that oregon has a lower rate per capita of exonerations than those states that do have the unanimous right so so what does it mean are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the one dissenter and the jury of the two dissenters in the jury were i can you just i'm just having trouble understanding what we're measuring this type of verdict would not be a verdict anywhere else but oregon so fundamentally has promised it is not a conviction the trying to look at fairness and dealing with how this can how this jury verdicts can can stand i have to go back to why it was created in the st place this jury crawford or even bats and you pointed out that you know it you call that speculative and that's an as to whether it's or that had been struck would have voted differently but here we know that someone would have voted differently i mean  contamination and discrimination in a jury that may well have affected the verdict and it seems to me that would be speculation here too to think that the case would have come out differently with a unanimous jury well i don't think we have to of two ways for members of this court to view the apa docket as an anomaly that did not alter prevailing constitutional standards ramos was largely dictated by president and set out an old rule for members of this court who viewed rama's as announcing a new rule is a watershed rule of criminal procedure it can to get ian dury unanimity predates the founding and ranks amongst our most in dispensable rights it is significantly improve the accuracy and fairness because they burdick taken from eleven is no verdict at all the state has no legitimate interest in a voting retroactivity louisiana's non unanimous jury scheme was thoroughly racist and discriminatory in its origin as members of this court said and ramos we should not perpetuate something petitioner minimizes louisianan oregon's reliance centrists and dismisses puerto rico is entirely but there can be no doubt that the clearing the ramos retroactive unsettles thousands of cases that involved terrible crimes in all three jurisdictions or quire in new trials and long final criminal cases would be impossible in some and particularly unfair to the victims of these crimes ramos is unquestionably a new rule this court has held on numerous occasions that a discarded precedent is the clearest sign of the new rules six justices and ramos agreed that epidemic of was a binding precedent and virtually every jurist state and federal addressing the issue before ra rules by super majority verdict does not render a trial fundamentally unfair nor does it seriously undermine factual accuracy of the verdict in some cases unanimity might improve accuracy but in others it might diminish  here edwards confessed to rape and armed robbery and was identified by one of his victims because ramos was decided long after edwards conviction became final the teak retroactivity bar should prevent him and others like  but it's a question exactly what it overruled it's i think it's more accurate to say it overruled the decision rather than the opinion because it's not really clear what the what the opinion was start for so for one thing i think that the question is what how lower courts would have st fave it when they were applying the will at the time and this court even in a way most recognised that the court itself has been studiously ambiguous and even inconsistent about what app attack on might mean but there's no question that it's a result was binding i think it was so it was always binding on lower courts and the court is also very carefully retroactive is not going to have a very significant impact on the criminal justice system in louisiana is do you agree with his mass i guess that it's going to be simply two or three additional cases per prosecutor in the state so we absolutely disagree with that math and i think that it is it is certainly not fair to suggest that we can just distribute all serious felony tooth out merely by there are a number one thousand six hundred or more new appeals and new trials for people that might be retroactively impacted by this you can't just hand out cases to anybody who happens to be an assistant district attorney i mean some of those people actually enforce laws and city court and or do you know they collect money for and they do civil cases i knew counsel here to read them out that way justice thomas federal judges to be one hundred percent of them believed that it was settled precedent and in fact the petitioner even in his heinous petition acknowledged that it was settled petition as as he did at the well i mean i think it plays a significant role because both under teach and under the court asks what was clearly established law at the time that the state adjudicated the claim and  disagree with my friend's position that at the state that he claims that this wasn't educated on the merits it clearly was raised on and adjudicated on the merits by the commissioner and the state district court in post conviction  one quick question what's your view of what the term back to receive means this is scientifically accurate both an acquittal and convictions or is it loading from on the scale one way or the  even harder question i think it's not enough to say that it's aimed at improving the accuracy or that it's directed toward enhancing the liability or accuracy in sound way the question is whether the new rule remed new trials that would be reported in puerto rico or oregon as well as yours the reason i think that's important is a if only seem to give the kind of compromise here that because of the th amendment applying to the states our courts this court supreme court was insisting upon some of her constitutional procedures but they didn't want to let everyone out of prison so they compromise that we also have concerns about that we know that that the issue in our state has been raised to challenge a plea agreement as well so it doesn't just affect those that were non unanimous jury verdicts it also has been the kind of question of accuracy i think that brown specifically related to the number of jurors and it held that it was retroactively but i read your active in part because i think it found that five was simply not enough and it was looking at ballyhoo and bar collectively and finding that even where you had a six man jury you ultimately only had a five person verdict and in ballo the court had said five wasn't enough to have and have a signet for the jury to actually do its job  throughout the process of a criminal prosecution from start to to finish well maybe that's your answer to the next question i was going if the gideon rule which was not the original meaning of the th amendment is a watershed rule how could we find that the unanimity rule which the court held and ramos was dictated by the i don't think that the historical roots of the rules is what determines whether or not it is a watershed ruling and that's certainly not how the court examined it and one i think the court has actually just looked at to question and that is whether it alters the court's understanding of the bedrock procedural element that is essential to fairness of a proceeding and it can't be met that standard can't be met simply by showing the rule is based on a red bedrock right and i would submit that ramos is a war that may be built on the the bedrock rules but it didn't of those who insisted on including the bill of rights as a condition for ratifying the constitution certainly thought that the rules protected by the bill of rights were bedrock fools or if they thought of this rather strange term watershed rolls so isn't there something rather odd about our saying well that's what they thought but we know better now and some of the rules that they thought were bedrock rules really are not so bedrock or watershed but there are some others like gideon roll which we now think are more important so those would be retroactive on collateral review but i think justice  historical roots of the rule and deciding whether it was or should be held retroactive under teach and and add to asks an even more limited question thank you counsel just to exception is we're never going to utilize ok i mean i think justice out of my word that that i would look potentially back at the the purpose of the scope of the writ i mean for one thing i think you're applying you are in the context of h corpus i think that's important and i don't you know this court has never applied anything as watershed other than getting and but i think when you talk about the the original context of habeas corpus the court has pointed to things like well i think a trial held by a special master without consent potentially goes to jurisdiction i mean that the court has also addressed the scope of the writ in the kind of historical scope of the right in the context of whether a court had actual jurisdiction to entertain the case and if it wasn't a court of competent jurisdiction where a special master without consent would arguably not be a court of competent jurisdiction  didn't that there aren't a significant number of people who are have been wrongfully convicted because of the lack of unanimity you say there's some people benefited some people  no i doubt i don't think that it does because i think the focus of the question and the question focuses on whether it is a procedural element that is essential to the proceeding and shows seriously undermine the held to a reasonable doubt standard was had to be used by any criminal jurist that was before t but if used but of teeth had applied do you think that that would have been held to be a  it's it's hard to say i mean i think the beyond a reasonable doubt standard goes to the proof that's put on throughout the course of the trial so good general but i think you're having trouble with the question it's hard to say because it's two things are true we cannot imagine the role being viewed as anything less than fundamental to our entire system not a number one but number two if you're only talking wouldn't be held to be retroactive justice kagan i think the court did examine that the the context of the beyond a reasonable doubt standard in the context johnson and and it really did look at the question of each individual jerk carrying and i don't think we can assume that a let ten or eleven jurors are not doing their duty and following their jury instructions and that was i think part of the premise of johnson when you look at the nine unanimity rule you are looking at each individual jurors whether each individual juror would carry their carry their  burden and take their instruction seriously and the court found there's no reason to assume they want i can just discourse which good morning counsel because i never heard you in response to the chief justice you said you absolutely did dispute six hundred number and you have no basis to dispute it but i would what we disputed was the promise that you could simply grant me trials and distribute all of those cases across the board to any prosecutor who happens to be an assistant district attorney i understand but one of the number of those universes agreed it seems then we have no we have no reason to dispute that number the the  when we expect it to be difficult if in fact it were a watershed rule if this really were a significant change an important one wouldn't we expect there to be some burden for the state and where does t tell us that that matters well i think every retroactivity question assumes or takes into account that there will be some burden and i think that it's built into the teak analysis and terms of our alliance interests in bad ways the preety linkletter balancing test express later jack cowin me though the i think you'd agree that if it is if it's watershed take that if the question in the taken out this is whether it's retroactive i'm not sure it answers the question of whether it's still precluded under add to or stand that counsel i'm not asking about it you told me not to even think about it  putting your brain on talking about undertake once we answer the question that it's watershed it doesn't matter how many cases there are in fact if it really were watershed would expect there to be a considerable number right based prime three strikes and babson and how those two things have come from up from a similar place a similar unfortunate place in our history in the court in the country's history and in this case  you know there's a black defendant the state uses its primary strikes to strike all but one black juror uses four of its six prime cories against black the near persons strikes five blacks for cause because several of them and partner for several of them had a family history of incarceration and you're left with one black girl with a black defendant and then you get a leavened a one verdict on the arm robbery count the two kidnapping counts one of the arm robbery counts to kidnapping counts and the rape count  and the one juror is the black black woman the black juror this case seems like a classic example of what we were concerned about with the combination of peremptory challenges being used on the basis of race maybe not to strike every juror but to strike all but one and then the nine unanimous security system  complimenting the rule the primary challenges i know there wasn't a batsman successful batson challenge in this case but the facts of this case certainly seem troubling on how it all played out steve you an opportunity to react to that if you want justice canada i mean the bass and claim was rejected because there was absolutely no basis for batson challengers in this case and and fifty five d y and supersedes teague so there are no exceptions there is no watershed exception and that's because two thousand two hundred and fifty four d one precludes a federal court from granting relief  if the claim result if the state court adjudication result in a decision that was contrary to or involves an unreasonable application of sorry permits granting relief only in that circumstance and twenty dollars to fifty four dollars de one makes no mention of watershed rules perhaps reflecting justice alito view that you know these are tasmanian tigers and there are none left and so under twenty dollars to fifty four dollars day one federal courts ought not be engaging in about what was clearly established law at the time the state adjudicated the claim and that was at the dhaka so i think we do have a that is our position on it i believe we answered the question the court posed with regard to teeth and the court has treated united states in saying that that that might need to be litigated further if you got to that point but i mean our position is that that he is precluded under but that even if it was a watershed rule still precluded under that statute so i mean i guess we do believe that permitting a super majority rule is not a fundamentally unfair procedure nor does the absence of unanimity seriously undermine the accuracy of the verdict this court should affirm the th circuit denial of thank you counsel mr michel application of t v the ramos rule is new because whatever disputes might exist about the presidential waive off the docket in this court it was at least reasonable for lower courts to rely on it when petitioners conviction became filed in tw eleven and the rule is not watershed because it is not essential to accuracy or a fair trial after all as the chief justice suggested at the outset of the argument that the right to a jury trial itself is not watershed so subsidiary rights like that to jury cannot be either that was also reflects the purposes of federal collateral review as he emphasized he is not a substitute for direct appeal but a career middle judgement of change under the law at the time becomes final it should stay filed outside the very narrow narrow exceptions that are not satisfied here counsel i'm not sure that your reliance on stephano is really right isn't the right right shouldn't be well mr chief justice a couple of responses i think the court of summerlin for example said that it's it's just hard to tell whether a judge or a jury is going to be more accurate and i think that alone is enough to show that petitioner can meet the counsel very briefly does the federal government have any light to shed on the statistics that we've been talking about you know mr chief justice the no one we know the bashes the federal interest here as we mentioned in our brief there is a sort of ripple effect from the these convictions on the federal reserve is that in the you know we think the number is somewhere around a couple of one hundred it's hard to pin down the exact number but there would be an impact on the federal system justice thomas yes thank you chief justice counsel would you just briefly discuss the term accuracy and what you think it means in this context you know justice thomas i think the court  not always spoken with one voice on that but there are certainly a number of opinions in which accuracy i think and is understood just to mean factual accuracy in the court in warton for example when discussing crawford made the point that confrontation could sometimes actually make make the trial less accurate in the court and bosler versus mcalary when discussing the th amendment right issue there may be the same point so i think the court has focused on factual accuracy  even if you were to adopt a more generous understanding of it and look to sort of the risk of wrongful convictions i still think the right here doesn't doesn't come close especially under this court's decision and johnson versus louisiana which expressway held that a non jury ruled in louisiana should play in our analysis well i think that and the court has at least some members of the court took that into account in the decision last time the decision in ramos but i think as as both idea just words the accuracy and so forth and you're really trying to think of how basic is this and then compare it to everybody's going to be released from jail that was the old system maybe didn't change the law i don't know  i don't have to deal with trying to fifty four dollars d if it's not interpretation of the statute it would have to come from a provision of the constitution such as the suspension clause is that where you think it comes from the justice alito i want to distinguish between the two the general retroactivity bar of to you which is what i meant to refer to earlier by saying that it's an interpretation of behavior statute informed by  e historical scope of the red separately i think your question is going to what's the authority for the exceptions to t the court of the majority the court in montgomery versus louisiana suggested that the substantive rule exception is rooted in the constitution the court has not reached a similar determination with respect to the watershed rule exception i think in part because it's never been applied but if forced to confront that is that we would say that that's not constitutionally required and  s supported by at best you know an equitable determination similar to that that informs the retroactivity bar why should we decide this case under the t v exception if there is a possibility that the think of any examples of a potential watershed rule that is not given and nd you dispute i don't like that answer folks i'm going to give you your remaining time for that you dispute that unanimity is necessary to increase accuracy in jury verdicts but i can't think of any justification other than that for the unanimity requirement that the constitution see th founders most of thought that that process enabled accuracy so i don't know why i should nd guess them or on what basis we would nd guess but history is still valid and it suggests the number of different historical bases for the unanimity requirement including the medieval notion that you know one juror who disagreed would be committing perjury which would have the consequence of damnation and the medieval notion of consent which among other things was manifested in the requirement that parliament itself pass laws by unanimity so you know i do think there is a medieval origins of this the don't necessarily go to the accuracy or fairness as we would think of that if you haven't been convicted by a unanimous jury you really haven't been convicted at all and so how could it be that a rule like that should not have retroactive effect of this case and i take all your point doesn't mean that it's retroactive on collateral review they're not implying about the origins of the rule and whether it goes back to founding times there's more in ramos there's there's station an idea that in the founding times it was to what this rule was thought of as inherent and what it meant to have a fair trial by jury and then accurate trial by jury so that whatever came out of that process of unanimity wasn't a part of it there wasn't a true convi which the court has found that a determination by the by a jury beyond a reasonable doubt is is required on the merits and yet is not retroactive on collateral review because there simply a different a different inquiry there  we captured all watershed rules of criminal procedure none are likely to come forward and it is hard to see if this doesn't qualify which the founders thought was an essential component of a jury trial right such a right could emerge but i agree with the courts and repeated statement that it's very unlikely that one will emerge at this point is the government have any anyone in mind that might emerge from in any any possible hypothetical that you can imagine there court thought that that was something that could arise in the future seems unlikely it would have said that no no no water here rules are likely to arise in the future giving a lot of credit to the teen court for thinking about all these eventualities and i appreciate that but  you know i'm not sure i'd go all the way there but i i do think it's a lot of merit to what you're saying and i do think actually if you look back at justice harlan opinions that gave rise to you can judge friendly's article that was relied on it was saying something pretty similar that that you know the exceptions really have to be narrow the substantive exception when something is not a crime and the watershed rule exception has to be similarly high something so serious that you're really not sure a crime was committed and so i think if you keep exceptions that narrow t his is solicitor general of wheezy and about which is do you think the number of cases that would be affected has any bearing on whether something is watershed know the court in t v very consciously broke from its past retroactivity jurisprudence which it found had been too lax and imprecise finality and federalism in adopting the new t grew and i think the reason it did that is it was worried about large scale disruptions of the state criminal justice system like that would be you know worked here thank you justice breyer good morning mr michel i want to talk to you about accuracy and the st thing i'd like to ask is a follow up to your dialogue with justice thomas and this is i think a point of clarification for me you were distinguishing between factual accuracy and what i understood you to say would have been a more generous standard of considering the likelihood of wrongful that you know there should be a sort of storm on the scale in favor of that offended and so you know if you know if there is twice as likely a risk of convicting wrong yet wrongfully convicted that should you know have an outsized risk as compared to no level of a serious accuracy problem thank you a minute to wrap wrap up counsel you mr chief justice i guess i just close by saying you know this court's decision ramos will have great significance going forward but the question before the court today is a different one as the ramos plurality noted it's the key doctrine that frees the court to reconsider its constitutional decisions without having the risk of seriously disrupting long final judgments and we think that's the right result here and the fish addition was convicted of serious crimes after a full and fair trial his conviction became final almost a day a to go to retry him now would require at minimum making his victims relive their trauma and in many other cases a retrial might not be possible causing a disruptive effect in both the federal and the state system so i think this is the heartland case for the application of the teeth bar petitioners final convictions should remain final thank you risk of an accuracy within the system that matters as this court said in blue the risk of sending ten innocent people to jail is greater than the risk of sending one guilty person free apodaca of was an opinion that was dead on arrival because it predicated its decisive vote on analysis that was foreclosed by president at the time it was decided ramos remove this uncountable thorn from the side of our legal system and as such it became a unique case which falls on a line that checks  boxes as being both an old rule and a new rule st ramos's an old rule it ignores it it has followed preexisting precedent that was logically dictated by the case law that take nd for members of this court who viewed apodaca as president promised announced a watershed rule of colonel procedure the state does not meaningfully address the parallels between ramos and gideon both decisions were stored bedrock six memmott principles and both decisions compelled outlier states to apply rights they previously refused to recognize a conviction can only be legally accurate at the state prove this case beyond a reasonable doubt of all jurors the express lee racist origin of not anonymous juries in the end the state has no legitimate interest in the voting rights to activity but force desire to let mr edwards languish in angola for the rest of his life on what grounds can we let this happen when we know his conviction is unconstitutional the answer to that question is non thank you mr chief justice thank you counsel the case is submitted