Amid the push to rid Louisiana of a Jim Crow-era law that allows for convictions even if juries are not unanimous, Gov. John Bel Edwards has signed a law that will make it harder to see how individual jurors voted in cases that end in split verdicts.
House Bill 699, by Rep. Joseph Stagni, R-Kenner, cleared both chambers of the Legislature unanimously, with little debate. It will take effect Aug. 1.
The bill changes current law in several ways: First, it requires that any polling of jurors be done in writing. Under existing law, polling after a verdict may be oral or written. Jurors are polled only if requested by the state or the defendant.
More significantly, perhaps, the new law says polling slips “may be placed under seal,” provided the judge gives reasons, and that once under seal, they may be unsealed only with a court order. Moreover, if that happens, the names of the jurors on the polling slips “shall be redacted,” or kept secret.
Under current law, judges may already seal polling slips, though the law does not specifically authorize it. If judges seal the slips, they are not required to give reasons, and if they unseal them, there is no requirement that jurors' names be redacted.
The secrecy portion of the new law will eventually become moot if Louisiana voters decide Nov. 6 to amend the state constitution and begin requiring that juries in felony cases must reach unanimous verdicts, as is the rule in every other state except Oregon. Current law allows for convictions — or acquittals — when only 10 of 12 jurors agree.
Jurors’ names are already a matter of public record. So if unanimous jury verdicts are required in the future, it won’t be necessary to review polling slips to know how each juror voted in cases where the jury agrees on a conviction or acquittal.
Moreover, roughly half of the convictions rendered by 12-member juries in Louisiana are unanimous, so those jurors’ votes are already known.
But it’s unknown whether the constitutional amendment to require jury unanimity — which surprised many observers when it cleared the Legislature — will pass. Christie Smith, chairman of the legislative committee of the Louisiana Association of Criminal Defense Lawyers, called the upcoming vote “a very losable battle.”
If it doesn’t pass, Smith said, an already opaque system will become more so.
“For those of us in the unanimous jury fight, all of our eggs are in one basket,” he said. “If we can’t convince the voting population that jury unanimity is the way to go, we’re actually worse off than where we started. It’s a great irony.”
Smith added: “It seems to me it’s intellectually inconsistent to have a groundswell of support for unanimous juries, but at the same time to secretize verdicts.”
He suggested lawmakers might have been looking for political cover: Those worried about possible fallout from the jury unanimity referendum will be able to point to their support for a bill to protect the secrecy of jurors' votes.
Even if Louisiana adopts a unanimity requirement, it will take some time for it to be felt. The constitutional amendment would apply only to offenses committed after Jan. 1, 2019. Given that felony cases often take a year and sometimes much longer to reach trial, the practice will take a few years to have an effect.
It’s not clear what problem Stagni was attempting to solve with his bill. Glenn Ansardi, a Jefferson Parish judge who lobbied strongly for the bill, said he pushed for it after he and his colleagues received a request in January from The Advocate to view jurors' polling slips in dozens of cases.
The request led the Jefferson Parish judges to meet as a group and issue an order on Jan. 31 sealing all juror polling slips, retroactively and prospectively.
The newspaper was able to review polling information from more than 100 convictions by split juries in other parishes, concentrated in Caddo and East Baton Rouge parishes. Those records showed that black jurors were about 2.5 times as likely as white jurors to disagree with a guilty verdict.
The newspaper did not publish the names of any jurors who did not agree to speak on the record about their experience.
Such an analysis would be essentially impossible if judges seal the slips in the future.
Even after Jefferson Parish judges sealed all of their past and future cases in January, they pushed for a statewide law on the matter.
Ansardi did not return phone messages from The Advocate.
Though Ansardi made clear in testimony that he wanted to keep such information private, Stagni told The Advocate that he had a different goal with the bill. He said he wanted to standardize the process of polling jurors and keeping the resulting records, noting that The Advocate’s reporting showed those practices are not uniform around Louisiana.
“This bill clearly establishes a better record because it’s a written record, with the verdict signed by the juror,” Stagni said.
Other proponents of the bill, including Sen. Dan Claitor, R-Baton Rouge, said the bill was intended to make jurors feel more secure. Claitor said he gets calls from constituents asking him to help them get out of jury service, which he refuses. Some, he said, have safety concerns.
“If this promotes more jury service and makes jurors feel safer, I’m for it,” Claitor said.
East Baton Rouge Parish District Attorney Hillar Moore said he believes some jurors worry they'll be pressed for information about how they voted by angry relatives of convicted defendants. The new law might give them more peace of mind, he said.
"I think it’s beneficial," he said. "It gives the jurors some type of anonymity as to who actually did what. Of course, when you get to a unanimous jury, everyone’s gonna know how you voted anyway."
Both Claitor and Stagni support the constitutional amendment requiring unanimous jury verdicts, and both said HB699 should be looked at “in tandem” with that bill.
“My expectation is that (the amendment) is going to be passed by the public,” Claitor said. “If I didn’t have that expectation, I might have a different feeling about this bill.”
Stagni agreed and said that if the amendment doesn’t pass, he’d be willing to amend his bill next year.
He called the bill “a good balance between the privacy of the juror vote and the protecting of the record for appellate purposes.”
Edwards, an attorney, said in an interview that he was not persuaded by the arguments in a letter from the American Bar Association asking him to veto the measure.
That letter said that if it becomes law, “the presumption … becomes secrecy, not transparency, for juror polling in criminal cases.”
Edwards said he signed the bill because of the broad support for it and because he believes it protects jurors. But neither he nor other supporters of the bill could point to any cases where jurors had been threatened or harmed over their votes.
Smith, the defense attorney, said he also was not aware of any such cases. “The only thing I’m aware of is the (Jefferson) court being vexed by The Advocate’s inquiry into the process,” he said. He added that, under the new law, “the data will actually exist. It will just be more cumbersome to acquire.”