Louisiana Supreme Court to decide whether jury must be unanimous to convict Woodfox at third trial _lowres

Photo provided by West Feliciana Sheriffs office -- Feburary 2015 booking photo of Albert Woodfox

While Albert Woodfox awaits a third trial in the 1972 killing of a Louisiana prison guard, attorneys for the state and the longtime Louisiana State Penitentiary at Angola inmate are waging a legal battle over whether the eventual jury must reach a unanimous verdict — or if only 10 of the 12 jurors need to agree for there to be a valid verdict.

Woodfox’s attorneys say the answer to the thorny question is simple: Unanimous verdicts were required at his 1973 trial and his 1998 retrial, so the same requirement should apply at the third murder trial.

“The state should not be rewarded, and Mr. Woodfox should not be punished, with a less thorough jury than he was afforded at his two prior trials simply because a retrial was made necessary by virtue of earlier violations of Mr. Woodfox’s rights,” his attorneys, William Sothern and Robert McDuff, have argued.

But attorneys for the state point out that the Legislature amended Louisiana’s first-degree murder statute in 2007 to allow for non-unanimous verdicts when the death penalty isn’t sought. The state’s lawyers also note that the 1st Circuit Court of Appeal has said the 2007 revision applies retroactively.

When rapper Torence Hatch, then known as Lil Boosie, was tried in Baton Rouge in 2012 on a first-degree murder charge, East Baton Rouge Parish prosecutors did not seek the death penalty, and the verdict did not have to be unanimous. Hatch was acquitted.

State District Judge William Carmichael, of St. Francisville, sided with Woodfox in September on the unanimity issue, but a three-judge panel of the 1st Circuit reversed the judge in a Jan. 15 ruling.

“The state is not seeking the death penalty. Therefore, the provisions ... regarding capital verdicts are inapplicable, and the provisions relative to cases in which punishment is necessarily punishment at hard labor shall apply,” Circuit Judges Ernest Drake, Guy Holdridge and William Crane wrote. “Because the provisions regarding the number of jurors that must concur to render a verdict are procedural in nature, a non-unanimous verdict in this case would not violate the defendant’s constitutional rights.”

Woodfox’s attorneys plan to ask the state’s highest court to review and reverse the appellate court.

“We believe that the issue was rightly decided by Judge Carmichael at the district court, and we are hopeful that his decision affording Albert Woodfox the full constitutional protections of a unanimous jury will be reinstated when we appeal to the Louisiana Supreme Court,” Sothern said last week.

Woodfox, 68, and former Angola inmates Herman Wallace and Robert King are referred to as the “Angola 3” because of their lengthy stays in solitary confinement at the maximum-security prison.

Wallace, who was convicted with Woodfox in the slaying of 23-year-old Angola guard Brent Miller, died in 2013, just days after a judge set him free and granted him a new trial. King was found guilty of killing a fellow inmate in 1973 but was released in 2001 after the conviction was reversed.

Woodfox was unanimously found guilty at both of his previous trials in Miller’s stabbing death, but his 1973 conviction was thrown out on his claim of “ineffective assistance of counsel,” and his 1998 conviction was tossed out due to racial disparities in the grand jury’s composition.

He was indicted a third time in February 2015 on a charge of murder under the 1972 murder statute, which carried a possible death penalty.

Woodfox’s motion to require a unanimous verdict, which Carmichael granted, states that after the U.S. Supreme Court declared the nation’s death penalty statutes unconstitutional in 1972, the Louisiana Supreme Court ruled the same year in State v. Holmes that defendants charged under statutes that carry the death penalty would remain capital defendants for the purpose of determining whether a unanimous jury is required.

Prosecutors are not seeking the death penalty in Woodfox’s case.

Following Carmichael’s ruling, state prosecutors argued in writing to the 1st Circuit that Woodfox does not have a right to a unanimous jury solely because that requirement was in place at his first two trials.

“Woodfox never had a ‘right’ to a unanimous jury, and he has not shown otherwise,” Assistant Attorney General Colin Clark wrote.

Woodfox’s attorneys agree that Louisiana lawmakers amended the state’s first-degree murder statute to permit non-unanimous verdicts when prosecutors don’t seek the death penalty, but they say Woodfox was indicted on “murder,” not first-degree murder.

The state, his lawyers argued to the 1st Circuit, cannot dismiss that distinction as merely semantic.

“The charge against Mr. Woodfox is not a first-degree murder but instead a murder under the law that preceded the division of the murder statute into first- and second-degree murder in 1973,” Woodfox’s attorneys told the 1st Circuit in the fall.

Clark, however, countered to the appellate court that “simply renaming a crime does not make the cases interpreting it any less useful.”

Woodfox’s attorneys contend in their 1st Circuit arguments that eliminating the jury unanimity requirement “would result in a trial that is more likely to result in wrongful conviction.”

Woodfox does not have a trial date.

His attorneys are appealing to the U.S. Supreme Court a 5th U.S. Circuit Court of Appeals decision that gave the go-ahead for Woodfox to be tried again. U.S. District Judge James Brady, of Baton Rouge, handed down a ruling in June barring another trial, but the New Orleans federal appeals court overturned him in November.

In a recent letter published in The Advocate, American Civil Liberties Union of Louisiana Executive Director Marjorie Esman noted that only Louisiana and Oregon allow verdicts by less than a unanimous vote of the jury in noncapital cases.