When Louisiana voters jettisoned a 120-year relic of the Jim Crow era by voting in November to require unanimous jury verdicts in serious felony trials, they went where courts have long refused to tread.
But the resounding vote left open the question of what would become of many cases still currently wending their way through the criminal justice system.
Now, that question may now have to be answered by the state Supreme Court, thanks to an October ruling by a Sabine Parish judge that recently drew its first real legal challenge.
The ruling by Judge Stephen Beasley, citing testimony from historians, a lawyer and an Advocate reporter, said Louisiana's allowance for split-jury verdicts violates the U.S. Constitution. Last week, Sabine Parish District Attorney Don Burkett’s office filed notice of its intent to appeal.
The case in question involves Valentino Ramon Hodge, 32, who faces charges of being a felon in possession of a firearm and domestic battery with strangulation.
Burkett's office last month asked the court to rule that only 10 of 12 jurors’ votes would be needed for a valid verdict.
Assistant District Attorney Anna Garcie, who is prosecuting the case, filed a motion noting that the alleged offenses had occurred in December 2016, and thus would not be covered by the new constitutional amendment. Garcie's motion also pointed out that the state Supreme Court and the U.S. Supreme Court, in earlier rulings, had upheld Louisiana’s split-verdict scheme as constitutional.
Beasley denied the motion, reminding the District Attorney’s Office that he had ruled the law unconstitutional in October, following an appeal of the second-degree murder conviction of Melvin Maxie. The ruling, which relied on the equal-protection clause of the 14th Amendment, had gone unchallenged.
So Burkett decided to challenge the ruling's application in the Hodge case. Under the state constitution, appeals of decisions in which state judges find a law unconstitutional automatically go to the state Supreme Court.
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The complicated legal maneuvering is partly a result of the decision by Burkett and Louisiana Attorney General Jeff Landry not to appeal the original ruling in State v. Maxie, which ended in a plea agreement that made arguing a constitutional question moot.
And it also leads back to the way the amendment was crafted when voters passed it last year.
The November referendum said that any defendant being tried for a crime that occurred on or after Jan. 1 could be convicted only when 12 jurors could agree on it – the practice followed in 48 of the other 49 states.
But the new law only affects trials of crimes that occurred on or after Jan. 1. Because it can take two years or more for many cases to reach trial, the Louisiana law allowing for split juries could potentially still be applied to Hodge’s trial and the hundreds of others that are still pending.
Beasley’s ruling, which came a month before the referendum, could change that calculus. Since it was never challenged, that gave the decision the force of law, at least in Sabine Parish.
Despite its limited impact, the ruling doesn’t sit well with Burkett, who was one of the state’s most vocal opponents of changing the split-jury law, and would like to enjoy its advantages as long as possible. In appealing the ruling in Hodge’s case, Burkett’s office argued that the state’s top court and the nation’s top court have already batted back challenges to the constitutionality of Louisiana’s law.
The U.S. Supreme Court last considered the question in 1972, finding in a controversial 5-4 decision that while the U.S. Constitution required unanimous verdicts in federal court, state courts were not bound by that.
Louisiana’s top court has ruled on the matter numerous times as well, and in 2009 the justices berated a district court judge for declaring the split-verdict scheme unconstitutional under the Fifth, Sixth and Fourteenth amendments.
However, the court’s irritation in that case was based in part on its contention that the judge’s reasoning was “rather insubstantial” and consisted of “a rambling diatribe with no discernable legal analysis.”
In the Maxie case, by comparison, defense lawyer Richard Bourke built a lengthy record to support his argument.
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Maxie was initially convicted of second-degree murder in an 11-1 verdict, resulting in a mandatory sentence of life without parole. After Beasley ruled the law unconstitutional, Maxie agreed to a deal that called for him to plead guilty to manslaughter and receive a 40-year sentence.
In Maxie’s defense, historians attested to the law’s origins in a racist constitutional convention. Advocate reporter John Simerman testified about how The Advocate built a large database of criminal trials and prospective jurors in Louisiana to gauge the impact of the law.
A law professor, Thomas Frampton, testified that the racial disparities the dataset highlighted were statistically significant.
Beasley eventually issued a 52-page ruling finding that the law was forged with racist intent during the Jim Crow era, and that it continues to exert a disparate impact on black Louisianians, and thus violates the equal protection clause of the 14th Amendment.
Beasley acknowledged that the law had been upheld previously by higher courts, but wrote that the evidence and analysis Bourke presented was persuasive – and that it was essentially unchallenged by the state.
The question now is whether the state Supreme Court will take a fresh look at the question, based on the record built by Bourke, or whether it will simply cite its earlier rulings on the matter and grant Burkett’s appeal.
In the meantime, the law and Beasley’s ruling are in a bit of a legal limbo.
Some defense lawyers around the state have tried to invoke Beasley’s decision, noting that it’s never been overturned. In their view, that means it’s the law, for now, though the prevailing view seems to be that it has no force outside Sabine Parish.
"Its value is determined completely by the next court that gets it and decides what it is," said Christopher Aberle of the Louisiana Appellate Project. "We can say it’s the law of the land for now, but another court can say 'we’re not following it.'"
That was the view of a Caddo Parish judge who was confronted with the question in December.
Defense lawyer Daryl Gold, representing accused rapist Steve Collins Jr., cited Beasley’s ruling and asked Judge John Mosely Jr. to require a unanimous verdict on that basis.
Though Caddo Parish District Attorney James Stewart was one a handful of big-city DAs to have endorsed changing the law, his office opposed Gold’s motion. Stewart himself argued the matter in court, according to Gold, saying Beasley’s ruling was only valid in Sabine Parish.
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He said he argued the motion personally only because he happened to be standing in the courtroom when the issue came up, and he joked that he did so only because had a long history with Gold.
“I’m on record supporting the new law,” he said. “I was simply saying the ruling of a Sabine Parish district judge doesn’t apply here.”
Mosely agreed, and Gold decided to proceed with the trial, figuring he could always appeal that question if his client was convicted.
When the jury came back, it was split 11-1 – in favor of acquittal. Had Gold won his motion, the case would likely have ended in a mistrial rather than an acquittal.
The irony wasn’t lost on Gold, although it didn’t change his view of the law.
“I benefited from the fact that the verdict didn’t have to be unanimous in this case," he said. "But I still don’t think it’s right."