The state Senate on Wednesday advanced a bill that represents the most serious challenge in nearly a half-century to a state law — enshrined in Louisiana's constitution since the Jim Crow era — that allows for convictions in serious felony cases without unanimous juries.
The Senate bill passed with surprisingly wide support on a 27-10 vote, following spirited appeals by its author, Sen. JP Morrell, D-New Orleans, and other lawmakers.
The fate of the measure, which would place a constitutional amendment on the fall ballot asking voters to require unanimous juries for convictions in all felony trials, now moves to the House, where Rep. Edmond Jordan, D-Baton Rouge, has filed an identical bill.
Should the proposal go to voters and be approved, it would require unanimity starting Jan. 1, 2019. It would not apply retroactively.
The measure requires a super-majority of two-thirds in both houses for passage. It cleared the Senate with one vote to spare.
Louisiana is one of only two states to allow non-unanimous verdicts in criminal trials. Oregon is the other, although that state requires unanimity in murder trials.
The Louisiana law, which allows juries to convict or acquit felony defendants with as few as 10 of 12 jurors agreeing, dates from the 1898 constitutional convention, which was steeped in the rhetoric of white supremacy.
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The 1898 constitution called for only nine of 12 jurors to deliver a valid verdict in all but capital trials. That was changed in the 1973 convention which produced the state constitution that remains in effect today.
The rule applies to all felony trials on charges in which the required punishment is hard labor. Juries in capital murder trials are required to reach unanimous verdicts, as are the six-member juries that decide on lesser felony charges.
A yearlong investigation by The Advocate, published Sunday as part of an ongoing series, revealed that the law continues to disadvantage black defendants more than white ones.
The newspaper found that the law, in tandem with racially tilted jury selection in felony trials, has the effect of diminishing the voices of black jurors, who are far more likely to dissent from the majority.
Data on nearly 1,000 verdicts by 12-member juries over six years show that black defendants were about 30 percent more likely to be convicted by juries with one or two holdouts than were white defendants.
Morrell called the measure “probably one of the most important bills that we will ever consider as a legislative body.” He argued against suggestions by some lawmakers that the issue needs study before putting it to voters.
The powerful Louisiana District Attorneys Association had taken that position as well, opposing the bill and recommending a study by the Louisiana State Law Institute. But the DAs discussed it again on March 21, and the group has backed off its opposition, said its executive director, E. Pete Adams.
“I think a lot of people felt that as an organization it was better that we take no position and leave the individual DAs to their own opinions,” Adams said. “We were not there lobbying it today. Individual DAs were free to take their own position.”
Noting that in many trials juries are never polled, Morrell argued that the question for lawmakers was not why the law should be changed, but why it’s needed in Louisiana but not 48 other states.
“Why is it necessary that we be one of two states that does 10 out of 12 (verdicts)?” he asked. “Texas, Arkansas, Alabama, Mississippi — they have no problem convicting people with unanimous juries.”
Morrell speculated that most 12-member jury trials would end up with the same outcome, but after more thorough, inclusive deliberations.
He moved from patriotic entreaties on the importance of juror unanimity to the nation’s Founding Fathers to a recitation of flagrantly racist passages from the official journal of the 1898 state convention.
Morrell also noted that Wednesday’s Senate vote arrived on the 50th anniversary of the death of the Rev. Martin Luther King Jr.
“I think it’s most appropriate to have it during this day, when you look at the fact this is a legacy of post-Reconstruction," he said. "The fact this happened before Dr. King and has lasted after Dr. King is truly sad.”
Sen. Francis Thompson, D-Delhi, was one of the no votes on the bill. He questioned a lack of official state research on the split-verdict rule.
Among the bill’s supporters, Sen. Dan Claitor, R-Baton Rouge, once an Orleans Parish prosecutor, described Louisiana as “a little bit schizophrenic” when it comes to jury verdicts, painting support for the bill as “a vote for liberty.”
Claitor recalled hiking felony charges against some defendants to ensure he could have two “mulligans” on a jury — meaning votes that wouldn’t matter.
“If I had a particularly hard case and I had the opportunity,” he said, “I would up-charge them because it’s easier for me to convict on 10 out of 12 than six out of six.”
The measure figures to face a hard road in the House, where Jordan’s bill has yet to clear the Criminal Justice Committee.