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Full story, pictures, videos: How an abnormal Louisiana law deprives, discriminates and drives incarceration: Tilting the scales

Less than a month before Louisiana voters weigh in on the future of the state’s unusual split-jury law, a Sabine Parish judge has issued a sweeping decision that declares the law was crafted with racist intent, continues to have a discriminatory impact today and thus violates the Fourteenth Amendment of the U.S. Constitution.

The ruling by 11th District Court Judge Stephen Beasley relied heavily on research by historians and legal scholars as well as an exhaustive analysis published this year by The Advocate of jury trials conducted across the state over a six-year period. The judge ruled that the newspaper's data provided "uncontroverted" proof that the state's split-verdict law has a disparate impact on both black defendants and black jurors.  

For the time being, Beasley's ruling invalidates split verdicts only in sleepy Sabine Parish, home to about 25,000 people. But the case could take on more significance if it's appealed and upheld -- or if it's simply replicated in other jurisdictions with busier dockets. 

Louisiana’s law allows for verdicts in felony cases as long as 10 of 12 jurors agree. Oregon is the only other state with such a law.

In the case at issue in Sabine Parish, a jury had voted 11-1 to find Melvin Maxie guilty of second-degree murder, which carries an automatic life sentence. Maxie will get a new trial if Beasley’s ruling is not successfully appealed.

In addition to finding Louisiana’s split-jury law unconstitutional, the judge – who presided over Maxie’s 2017 trial – found Maxie deserved a new trial on the grounds that prosecutors improperly struck three prospective African-American jurors from the pool because of their race.

Maxie is black, as was the lone dissenting juror. The 11 jurors voting for conviction were all white.

On Nov. 6, Louisiana voters will decide on a constitutional amendment that would, for the first time in 120 years, require Louisiana juries to return unanimous verdicts. If voters pass the measure, it would lessen the impact of Beasley's ruling substantially -- but not entirely.

Equal protection claim

While Louisiana's oddball law has been challenged many times in state and federal courts, Maxie’s lawyer, Richard Bourke, launched perhaps the most ambitious assault yet.

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At a July hearing, Bourke elicited testimony from Thomas Aiello, a history professor at Valdosta State University in Georgia who authored a book about Louisiana's split-jury law called "Jim Crow's Last Stand."

Aiello spoke of the the racist climate in which the original law was passed, in 1898, and of racial tensions permeating the 1973 convention when the law was updated. He cited contemporaneous newspaper articles and editorials from the late 1800s that warned against allowing black people to have a voice on juries, and he testified that the 1973 delegates recognized the law's discriminatory impact but chose to tweak it instead of eliminating it.

Bourke also introduced a deposition that Tulane University history professor Lawrence Powell gave in a similar challenge of the split-verdict law.

Advocate reporter John Simerman, meanwhile, testified by telephone about about how the newspaper gathered trial records and built a database containing information on roughly 3,000 jury trials across the state over six years, along with a larger database of about 42,000 prospective jurors summoned to court during that time.

The Advocate found that in nearly 1,000 convictions where the vote count of the jury was known, black defendants were 30 percent more likely than white ones to be convicted by split juries.

The paper also found that black people were underrepresented on juries in most Louisiana jurisdictions. An analysis of a smaller group of cases in which the newspaper was able to match votes to specific jurors, meanwhile, found that black jurors were much more likely than white jurors to disagree with the verdict.

Thomas Frampton, a professor at Harvard Law School and former public defender in Orleans Parish, testified about his own analysis of the newspaper's data. Frampton stated that the racial disparities it showed were statistically significant. He also called the dataset "the most comprehensive and extensive study of jury outcomes and juror voting he had ever seen," Beasley wrote in his 52-page ruling.

The Sabine Parish District Attorney's Office did not call any witnesses, instead simply cross-examining the witnesses called by Bourke. Both sides filed briefs summarizing their arguments, with the DA's Office casting aspersions on the historians' conclusions and The Advocate's data-gathering effort.

"Skewed datasets such as those relied upon in The Advocate study cannot be the basis for the relief requested by Maxie in this case, which seeks to hold unconstitutional a statewide jury verdict scheme of over 40 years standing that has been approved by the United States and Louisiana Supreme Courts," prosecutor Anna Garcie wrote.

Among other gripes, prosecutors complained that the database contained no cases from Sabine Parish, although the newspaper spoke with officials at the District Attorney's Office on at least five occasions in an effort to gather information about trials there.

The District Attorney's Office never provided the newspaper with a list of cases, or any other data, a fact that Beasley noted in his ruling. 

In the end, The Advocate was able to gather information on trials from 35 of the state's 64 parishes, including nearly all of the cases tried in nine of the 10 busiest courthouses in Louisiana.

Other judges in Louisiana have entertained constitutional challenges to Louisiana's split-jury law in recent years, only to reject them, adhering to longstanding rulings by the U.S. Supreme Court and the Louisiana Supreme Court.

But Beasley argued that those courts had not had the benefit of the evidence and analysis presented by Bourke -- which he noted, more than once, went unchallenged by the state.  

“The analysis of the data shows that the rate at which African-Americans cast empty votes, thereby being deprived of meaningful jury service, and the rate at which African-Americans are convicted by non-unanimous juries could not be explained by random variation in the data," the judge wrote. "These outcomes could only be explained by some outside force operating on the jury process. The only common denominator in these matters was the use of a non-unanimous jury verdict system.

"The current scheme in Louisiana has a disparate impact on minority jurors and defendants and therefore violates the Equal Protection Clause of the Fourteenth Amendment and is therefore unconstitutional."

Impact still unknown

Given that the judgment contradicts previous rulings from higher courts, it will not be considered binding outside Beasley’s courtroom unless it's upheld by a higher court, according to Katherine Mattes, director of the Criminal Justice Clinic at Tulane Law School.

Because Beasley is the only judge in Sabine Parish, the ruling is law across the parish. But the parish only sees about three trials a year.

For the case to have the force of law statewide, it would have to be appealed to the state Supreme Court -- its next stop because it involves a constitutional question -- and be upheld there.

But whether it will be appealed is unclear. Don Burkett, the Sabine Parish district attorney, said this week that he might wait until after Nov. 6 to decide on an appeal. While the ruling could also be appealed by state Attorney General Jeff Landry’s office, a Landry spokeswoman said Thursday that the attorney general plans to defer to Burkett. 

Beasley said his ruling applies to pending prosecutions as well as people who were found guilty but haven't run out of direct appeals. Even so, if the constitutional amendment passes, the ruling might only affect a handful of cases in Sabine Parish. But if it fails, Burkett said he'd almost certainly appeal.

"I wouldn’t want to be the only one having to get unanimous verdicts in every case," he said.

Regardless of what voters choose to do Nov. 6, Beasley's ruling could still have a broad effect on prosecutions in Louisiana. 

Several legal experts said that, even if the Sabine case does not become precedent around the state, other defendants will be able to cite it. Bourke has also built a road map of sorts for other defense lawyers who want to mount similar challenges in other jurisdictions.

"It's not precedent, but it's persuasive," Mattes said. "It's like so many other things, once someone makes that first move, it makes it easier for others to follow. This clearly is a template that can be used in other cases, and in that sense, it's a remarkable and important ruling that could have some very significant consequences around the state."

That may mean it's inevitable that the arguments eventually wind up on the dockets of higher courts. 

That reality, according to Raymond Diamond, a professor at LSU Law Center who specializes in constitutional law, may persuade those who want to preserve the split-jury law to let the Sabine ruling lie. They may be better off challenging another case, one where the state has laid a better legal foundation.

"If I'm the state, I'm not sure I'm prepared to litigate on this record," Diamond said. "I might want to stand my ground in a case where I have put together a more favorable record than the state put together here. If you're playing the long game, you have to think about what's going to be most effective."

Diamond found it surprising that Sabine prosecutors didn't bother to put on witnesses, comparing it to "going into a knife fight with your bare hands, when the other side has expert witness and studies supported by facts and evidence, and you don't have anything."

It's hard to say how higher courts will receive Beasley's decision. Louisiana's high court, along with the U.S. Supreme Court, have previously affirmed the constitutionality of Louisiana’s split-jury scheme, though in the case of the latter, it was a narrow 5-4 decision.

Beasley noted those earlier decisions, but underscored that his ruling was based on data and research that was not available to the justices that issued the earlier decisions.

Bourke, who has challenged the split-jury law in many forums over the years, was elated with his court victory. He said he hopes it creates more momentum for the upcoming vote on the constitutional amendment.

“I guess the important thing I’d want people to know is that after a full evidentiary hearing, this is a finding that Louisiana’s majority-verdict law was deliberately introduced to discriminate against black people,” Bourke said. “And because it’s been in operation since that time, it continues to have that effect, and we should get rid of it.

“Even if there’s an appeal, I don’t think anyone is going to be able to disprove that in 1898, this law was introduced for racist reasons, and it still has a racist effect."

Follow Gordon Russell on Twitter, @GordonRussell1.