Once seen as a long shot, a move to allow Louisiana voters to decide whether juries in felony cases must return unanimous verdicts — as they do in 48 other states — is starting to look like a juggernaut.

A bill to put a referendum on the question on the fall ballot was given a unanimous thumbs-up by a House committee Wednesday, prompting declarations of shock and an eruption of applause in a room packed with supporters of the change.

State Rep. Sherman Mack, R-Albany, who chairs the House Committee on the Administration of Criminal Justice, said that 165 people filled out cards in support of the bill.

The bill, which had already passed the Senate by the required two-thirds vote, now must clear the full House by a two-thirds margin. If that happens, it will have to pass the Senate again because the House committee adopted an amendment specifying the change would not be retroactive. It then would be up to the voters to consider amending the state's constitution.

Louisiana and Oregon are the only two states that allow verdicts by split juries. Both states require only that 10 of 12 jurors agree before rendering a verdict — whether guilty or not guilty — in felony cases. Louisiana is alone in allowing such verdicts in murder cases, though not if the death penalty is a possibility.

Louisiana was the first state to adopt such a rule. It did so at a constitutional convention in 1898 whose avowed purpose was “to restore the supremacy of the white race.” The move came at a time when black Louisianians had registered to vote in large numbers and were starting to serve on juries.

Proponents of getting rid of the split-verdict rule cited both its shameful origins in the Jim Crow era and its departure from what is seen by many as a cornerstone of the American legal system — that the unanimity of a jury is a key protection against the tyranny of the state.

“It’s a precious right. The jury stands between the people and the government,” said Ed Tarpley, a former district attorney of Grant Parish who has become a leading advocate of Senate Bill 243. “It’s the unanimous jury of 12 citizens that makes a decision about whether to deprive someone of their liberty. It’s a powerful protection we have in our government.”

Tarpley, who is politically conservative, noted that the late U.S. Supreme Court Justice Antonin Scalia was a firm believer in requiring unanimous juries, a fact that got approving mention from state Rep. John Stefanski, one of the committee’s 10 Republicans.

While the vote in the end was unanimous, the bill did face some opposition.

Two district attorneys from the western part of the state — Don Burkett of Sabine Parish and John DeRosier of Calcasieu Parish — urged the committee to vote the bill down.

Burkett said that nearly all of the 43 district attorneys in the state oppose the measure, even though the politically powerful Louisiana District Attorneys Association is officially neutral on the matter. He said the organization — which had opposed the change as recently as last month — tends not to take a position if all members can’t agree.

“So the DAs didn’t take a position because you couldn’t get a unanimous decision — did I hear that right?” asked Rep. Denise Marcelle, D-Baton Rouge, to laughter from the audience. “But we should allow 10 out of 12 people to decide a criminal case?”

Both Burkett and DeRosier argued that it’s very difficult to get 12 people to agree on a verdict, even in an “open and shut” case.

DeRosier said there is no correlation between a split jury verdict and the likelihood that a convicted defendant is actually innocent. He said that since the current law, which dates to 1974, was adopted, roughly 30,000 criminal trials have been held in Louisiana. He claimed that only 12 convictions over that time have been reversed “for lack of sufficiency of evidence,” and that in nine of those 12 cases, the jury was unanimous.

In an interview after the hearing, DeRosier said those figures were based on research by his staff.

Burkett also estimated that 40 percent of the hundreds of trial convictions he has racked up over three decades were delivered by split juries. That’s the same figure The Advocate came up with in a recent analysis of almost 1,000 jury trials across the state over a six-year period.

Both prosecutors complained that with a requirement of unanimity, holdout jurors would make the delivery of justice nearly impossible, and they urged the committee to think about the victims of crime rather than defendants.

Burkett said defendants already enjoy a wide array of protections, including the requirement under the U.S. Supreme Court ruling in Brady v. Maryland that prosecutors must turn over any evidence to a defendant that might be helpful in his or her defense.

But those arguments gained little traction with the panel.

“All I’ve heard here is that one or two people can make your job more difficult,” said Rep. Royce Duplessis, D-New Orleans. “I still haven’t heard a good reason, in my estimation, as to why this law should remain.”


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A handful of African-American legislators also took strong exception to comments by both DeRosier and Burkett that seemed to them to downplay the importance of the law’s racist origins.

“I’ve heard a lot about this being a vestige of slavery,” DeRosier said. “I’m not proud of that, and I have no reason to doubt it. But it is what it is.”

Minutes later, Rep. Ted James, D-Baton Rouge, said he couldn’t let those remarks go unchallenged. “I am so utterly offended for you to say that this is rooted in slavery but 'it is what it is,' ” James said, prompting applause from the room. “You are elected to represent everybody. … I hope the people who elected you are hearing that.”

The bill’s sponsor, Sen. J.P. Morrell, D-New Orleans, said the bill’s ignominious origins do matter.

“We can’t say, 'This was born in racism, but it is the way it is,' ” he said. “We have an opportunity to make history here. This is like the vestigial tail of some prehistoric creature that we should just chop off. This kind of thing just holds us back.”

Follow Gordon Russell on Twitter, @GordonRussell1.