Until Louisiana’s longstanding, nearly unique system of allowing divided juries to issue criminal convictions emerged as one of the legislative season’s hot-button issues, a lot of lawmakers admit that they hadn’t given it much thought.
State Sen. Dan Claitor, R-Baton Rouge, is definitely not one of them.
As a young prosecutor under former Orleans Parish District Attorney Harry Connick, Claitor knew all about the provision allowing 10-2 verdicts in some cases, and used it to his advantage, he explained in a stunning speech on the Senate floor earlier this month. One common method for prosecutors, he said, is to file more severe charges against a defendant in order to qualify for a 12-person jury, rather than having to convince every member of a six-person jury that would be considering lighter charges.
“I’ll put myself out there…I’m not proud of that,” Claitor told his colleagues as they prepared to vote on a bill by state Sen. JP Morrell, D-New Orleans, to ask voters to require unanimous verdicts in all cases. “I’m embarrassed that I haven’t brought this bill before this time myself. I give JP thumbs-up to have the cojones to come up here and go with a bill that’s not popular like this.”
Claitor is a conservative with an unpredictable side, particularly on criminal justice. He’s one of the Legislature’s leading advocates, for example, for abolishing the death penalty. So his embrace of Morrell’s measure, introduced at the behest of the state’s criminal defense lawyers’ association, wasn’t exactly out of character.
But it may well have been decisive in winning the support of the required two-thirds of the Senate, the proportion needed to put a constitutional amendment on the ballot. The bill is now pending before the House.
Wanting to have maximum impact, Claitor didn’t telegraph what he was going to say. Even Morrell didn’t know exactly what was coming. When it came, it landed with full force.
Claitor explained how the provision plays out in real life. He touched on the social justice arguments against the current law — one theme of the Advocate’s ongoing series on the subject, which has highlighted its Jim Crow-era origins and the ongoing racial aspect of its application. Claitor told his colleagues something that wouldn’t be good enough for their families and friends shouldn't be good enough for people who “don’t have enough money to get a good lawyer.”
But Morrell thinks Claitor’s overall framing of the issue as a question of government overreach was key in giving conservative senators a reason to vote yes.
“Do we trust the government?” Claitor asked. “No, we don’t trust the government,” he answered, which is why the country’s founders enshrined the free press, the right to bear arms and the requirement that investigators get search warrants in the Bill of Rights.
“The last thing that stands between us and the government when it really, really goes bad is a jury of your peers,” he said.
Morrell said afterwards that it was one of the few times he can remember a floor debate changing minds, and the only time he thought a measure that was heading for defeat actually passed.
In an interview after the floor speech, Claitor said the issue had been on his mind since he became chairman of the Senate’s Judiciary C committee, when a young man with a relative who’d been convicted on drug charges by a non-unanimous jury asked that he spearhead a change.
But he first became aware of the law even before he went to work for Connick.
As a third-year law student at Loyola University, he worked with the school’s law clinic as a defense attorney. His instructor, Calvin Johnson, who Claitor said was particularly good at reading juries and who would later become a judge, figured the challenges of convincing three jurors to acquit into his strategy. In one case that stuck with Claitor, that meant advising a client in a manslaughter case to plead guilty rather than risk conviction.
As for his actions as a prosecutor, Claitor said he’s not saying what he did was “unfair, illegal, wrong or immoral.” But he said that the system does remove any incentive to consider bringing lesser charges, and that “maybe” it contributes to Louisiana’s nation-leading incarceration rate.
“It’s not a two-year-old issue, it’s a 32-year-old issue” to him, Claitor said. “Again, it’s embarrassing to me that I would let an issue like that lie that long, when I’ve been in a position to do something about it.”