A Senate committee voted Tuesday to move to the full Senate a bill that would put before Louisiana voters a constitutional amendment to junk the state’s unusual and long-standing allowance for non-unanimous jury verdicts in felony cases.
To get onto the ballot, Senate Bill 243 – which is opposed by the state’s powerful district attorneys -- would have to pass both the full House and the Senate with a two-thirds vote.
If all that happened -- and voters then approved the constitutional amendment by a simple majority – the result would be a major change in the way criminal trials are conducted in Louisiana.
Louisiana is one of only two states – Oregon is the other – that allows people charged with felonies to be convicted when only 10 of 12 jurors agree on guilt.
Since juries convict most defendants, the law generally accrues to the benefit of the prosecution.
Sen. J.P. Morrell, D-New Orleans, the bill’s sponsor, sought to make a constitutional argument for the change, arguing that the nation’s framers had believed unanimity was inherent in the right to a trial by jury. That point was echoed by Ed Tarpley, the former district attorney of Grant Parish and now a leading advocate for changing the law.
Tarpley told the committee that unanimity “was implicit” in the Sixth Amendment’s right to trial. “How can you say a person has been convicted and found guilty beyond a reasonable doubt when one or two of the jurors says, ‘No, I have reasonable doubt,’” he asked.
In fact, Louisiana did not allow split jury decisions in its first decades of statehood. The change in the practice came in the late 1800s, as white Louisianians sought to re-assert their dominance in the post-Reconstruction period.
Morrell largely skirted the ignominious racial origins of the law in the hearing, focusing instead on the fact that Louisiana is an “outlier.” Most Louisianians probably already assume unanimous verdicts are required, Morrell said, since that’s the way American justice plays out on television.
“They don’t understand that we are a unique state, and not in a good way,” he said, noting Louisiana’s high crime and incarceration rates. “The vast majority of other states do not do this and they have better outcomes.”
Morrell said Oregon’s district attorneys have signaled they may support a change to that state’s laws, and predicted that if Louisiana is the last state with such a law, the U.S. Supreme Court might well overturn it – and potentially make the change retroactive, which could create chaos for prosecutors.
Pete Adams, the executive director of the influential Louisiana District Attorneys Association, implored the committee to vote it down.
Adams said there was no evidence that Louisiana’s law results in less reliable verdicts than those returned in the rest of the country.
“I don’t believe that because 48 other states do this that that’s a good enough reason to do this,” Adams said.
And he predicted the change would result in many more hung juries, and thus costly retrials. After all, it’s nearly impossible to get 12 people to come to a consensus on anything these days, he said.
“In today’s society, getting 80 percent of people in any group to agree on any topic is a phenomenal task,” he said. “Everyone’s in their corner. More so than ever, people take their agendas into the courtroom. You’re inviting jury nullification.’
State Sen. Bodi White, R-Central, the lone committee member to oppose the bill, asked Morrell if he had an estimate of how many more hung juries would result from the proposed change, and what the cost of new trials occasioned by them might be.
Morrell said he didn’t.
“I could see this becoming a monetary decision,” White said.
The Senate Committee on Judiciary C voted 5-1 to move the bill, with White the lone "no" vote. Voting to approve the bill were Sens. Regina Barrow, D-Baton Rouge; Troy Carter, D-New Orleans; Dan Claitor, R-Baton Rouge; Fred Mills, R-St. Martinville and Jonathan Perry, R-Kaplan.