By the time authorities fished Bobby Byrd out of the Red River in 2011, they were pretty sick of him.
He’d led police on a chase through downtown Shreveport and into neighboring Bossier City before ditching his car and jumping into the drink.
A police dog paddled out and bit him. Officers then pummeled him on the riverbank with what they called “distraction strikes,” saying he continued to resist. Byrd arrived at the hospital with his nose and eye socket broken, a kidney injured and his wrists in handcuffs.
Police had been looking for a serial burglar in a tan minivan, and Byrd’s vehicle was a match. But it was his refusal to stop — not any heist — that left him at the mercy of a Caddo Parish jury.
Less than two years later, in January 2013, he was on trial for his life, charged with aggravated flight from the law.
The flight charge itself topped out at two years in prison, and Byrd had no violent felonies on his record — only drug raps and a conviction for attempted simple robbery. But those guilty pleas made him eligible for the life sentence prosecutors vowed to unleash on him under Louisiana’s repeat-offender law.
Byrd rose from the defense table to hear the guilty verdict. What came next blindsided him, he said.
“When my lawyer polled the jury and one of them stood and said, ‘Not guilty,’ I was shocked and confused,” he wrote to The Advocate.
“How could I be found guilty when one of the jury members found me not guilty? There was clearly reasonable doubt in his mind as to my guilt. I felt cheated.”
Now 45, Byrd is five years into a stint at the Louisiana State Penitentiary at Angola that will end when he dies. He has exhausted his appeals.
Needing only 10 of 12 jurors to agree, Louisiana is one of only two states in which juries can convict by nonunanimous decisions (Oregon being the only other state).
A grim calculus
Louisiana and Oregon are the only two U.S states that allow for split-jury verdicts in felony cases. And Louisiana is alone in the way it combines that lower bar for conviction with harsh sentencing practices and a punitive multiple-offender law.
It’s a potent cocktail that puts awesome power in the hands of prosecutors, who need only 10 votes on a jury to convict.
The combined effect is simple: more people serving more time in prison. On a per capita basis, Louisiana is the nation’s leading jailer. And it has nearly twice as many people serving life without parole as its nearest rival, Mississippi.
In Byrd’s case, Caddo Parish prosecutors made clear from the get-go that they were playing hardball, according to Byrd and his lawyer, Gerald Weeks. Both figure that the federal civil rights lawsuit Byrd filed, accusing officers of using excessive force, didn’t help his cause.
The Caddo Parish District Attorney’s Office declined comment on the case. But Byrd says he was never offered any sort of deal until after the jury was picked — when prosecutors told him he could plead guilty as charged and serve 25 years. He declined.
Byrd came out on the losing end of a grim calculus that Louisiana felony defendants confront as a matter of course: weighing a guilty plea and a hefty prison term against the tall odds of convincing at least three jurors that prosecutors got it wrong.
Whichever the choice, plea or trial, jurists and defense attorneys say the split-verdict rule plays a significant role in keeping Louisiana at the top of the nation's incarceration pyramid. Precisely how big a role is open for debate.
“I do think clearly it’s a contributing factor to the number of people incarcerated,” Paul Bonin, a Criminal District Court judge in Orleans Parish who previously served as an appellate judge, said of the split-verdict rule.
“Once you lower the threshold for a guilty verdict, that spills over into a lawyer's and his client’s evaluation of what your chances are at trial. ... It’s the hidden thing.”
State public defender Jay Dixon agreed: “I think our prison population speaks for itself. Look no further. You can’t tell me that’s not part of the problem.”
Most of Louisiana’s roughly 33,000 state inmates did not wind up in prison because they were convicted by juries — unanimous or otherwise. More than 90 percent of new inmates enter the prison system after taking plea deals.
But if trials are rare, they serve a vital purpose, setting an upper bound for a defendant’s potential punishment and a deadline for copping a plea.
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The split-verdict law is baked into the risk analysis, defense attorneys say.
“The 10-2 rule causes some defendants that might not otherwise plead to consider a plea,” said Ralph Capitelli, a longtime defense lawyer who once served as top deputy to former Orleans Parish District Attorney Harry Connick Sr.
“As a prosecutor, you have the luxury of saying, even if you have one or two jurors who you believe are problematic, well, you can still get the conviction. It gives you a little bit of margin.”
Ed Tarpley, the former Grant Parish district attorney who has become a leading advocate for changing the split-verdict law, says the force exerted by the law is hard to overstate. He describes its effect as hidden but heavy, an “unseen hand” stirring the pot.
“The state goes into any criminal trial with an overwhelming advantage,” Tarpley said. “That’s why a lot of cases don’t go to trial. Defense lawyers realize that because of this law, the burden is so huge they don’t feel like they’ve got a chance. So the best thing is to work out a plea.”
Tim Meche, a veteran defense lawyer in New Orleans who has practiced in other states, put it in gambler’s terms.
“It raises the price of poker,” he said.
Measuring the effect
Cases that go to trial tend to involve more serious charges, and ultimately more severe penalties, than those resolved by plea deals, according to an Advocate analysis of thousands of trial records and state prison admissions data.
That’s why the relatively small number of inmates sentenced to prison each year following jury verdicts carve a larger footprint in Louisiana’s towering incarceration rate.
But it’s not easy to measure the law’s direct effect because state corrections officials don’t keep track of who got to prison by way of trial versus plea deal.
The data that are available, however, make clear that most inmates are behind bars because they took plea bargains. For instance, there were just over 500 jury trials in Louisiana in 2015, a year that saw more than 8,200 inmates admitted to state prisons. So even if every single trial defendant that year was found guilty and sent to prison, they would have made up only 6 percent of new prison admissions.
The true share is smaller than that.
While the data make clear that most new inmates did not go to trial, it’s equally plain that the ones who did, and lost, were far more apt to receive lengthy sentences.
Meanwhile, of the inmates who got less punitive sentences, the defendants who went to trial received substantially more prison time than those who took plea deals.
Consider Jefferson Parish, which consistently ranks at or near the top in filling Louisiana prison beds.
In 2015, jury verdicts resulted in prison time for 34 Jefferson Parish defendants — just over 4 percent of total prison admissions from the parish that year. Two-thirds of them remain in prison today.
But of those who pleaded guilty in exchange for prison time, just 1 in 5 remains there, according to an Advocate analysis of trials and state prison rolls. Sentences of five years or less were handed down for two-thirds of those making guilty pleas.
Excluding life prisoners, the median sentence for inmates convicted by Jefferson Parish juries in 2015 was just over a decade — more than double the sentence of defendants who pleaded guilty. And all 20 inmates who were sentenced to more than 45 years in Jefferson Parish that year — including a dozen who got life — were found guilty by juries.
The result is that even though comparatively few Louisiana inmates enter the prison system after jury verdicts, their numbers accumulate over time.
Although it’s hard to say precisely what proportion of Louisiana’s 33,000 state inmates wound up in prison after a jury trial, coming up with a baseline is not difficult.
That's because nearly all of the 6,052 Louisiana inmates serving life without parole, or a “virtual life” sentence of 50 years or more, were convicted by a jury.
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Taken together, these inmates make up more than 18 percent of the state’s prison population.
Overall, about 4 in 10 of those found guilty at a trial likely were convicted by a jury that had at least one dissenter, according to The Advocate’s database of 993 cases where the jury vote was known.
Of course, that’s not to say these inmates would otherwise have been acquitted. But many likely would be serving less time were it not for Louisiana’s unique law.
Many veteran lawyers say that, were the state to end its law allowing nonunanimous verdicts, many juries that couldn’t reach unanimity still would convict the defendant but on a lower charge carrying less time in prison.
The hidden impact
The shadow cast by Louisiana’s unusual rule stretches far beyond the jury deliberation room. The thousands of inmates who opted against a jury trial still likely felt its effect.
When a Louisiana district attorney is deciding on whether to offer a plea deal, the law is one more advantage for him or her. Many defendants consider those long odds and take a deal.
King Alexander, a Calcasieu Parish public defender and an advocate for changing the law, said prosecutors often “overcharge” clients — for instance, charging second-degree murder when the evidence points to the lesser crime of manslaughter — because of the leverage it gives them.
A conviction on manslaughter leaves the next decision to a judge, who can sentence a defendant to anything from zero to 40 years. With a murder conviction, the judge has one option: life.
“A lot of people plead guilty to charges that prosecutors would have a hard time convicting people of with (a requirement for) a unanimous jury,” Alexander said. “I have clients who would have gone to trial on manslaughter and taken their chances. But looking at life without parole from a nonunanimous jury, knowing he’s facing the possibility of being convicted by 10 of 12, he takes the deal.”
Alexander recalled a recent case in which his client, Randell Roy Austin, 67, faced a charge of second-degree murder in a killing in which Alexander believed he had a plausible claim to self-defense.
But Austin agreed to plead guilty to manslaughter under a deal in which he would serve no more than five years. The prospect of a 10-2 murder verdict, which would have mandated a life sentence, “weighed heavily in Randell’s decision,” Alexander said.
David Belfield, a New Orleans defense lawyer, said his entire strategy would change if the law did. “I would take that shot (at trial) more than I do now,” Belfield said. “Right now, I need three (jurors to vote for not guilty), when all I would need is one.”
Retired Orleans Parish Judge Frank Marullo, who likely presided over more jury trials than any other Louisiana judge, describes the split-jury law as an obvious muscle boost for prosecutors in a system already tilted in their favor.
“You get a prosecutor who really wants to come down on a person because of their rap sheet — there’s this bad-boy effect,” Marullo said. “If you really want to look at it, the whole sentencing scheme is a tremendous advantage for the state. It makes the guy plead guilty because he’s afraid.”
But the leverage game can cut both ways: Because prosecutors have so many arrows in their quiver, the deals they offer “aren’t as good because they don’t fear losing,” Alexander said. And that can almost force some defendants to go to trial, figuring they have little to lose.
‘This guy is a badass’
Consider the case of Cornelius Kirsh.
In 2014, he took a hard left into a Slidell subdivision as a patrol car sped toward him. The officers were responding to a report of possible gunfire.
The police pursuit was over in seconds: Kirsh, then 23, stopped his SUV a few hundred feet down the road when a second police unit blocked the way. One of his passengers jumped out and fled.
The police report says Kirsh was driving at “an extremely high rate of speed” without regard to children playing nearby and that officers smelled “the strong odor of freshly fired gun powder.”
Still, they marked it down as a relatively minor affair, booking Kirsh on a count of reckless driving and two lesser violations. A conviction would have meant a maximum of 90 days in prison and a $200 fine.
The stakes soon got much higher. A St. Tammany Parish prosecutor, Nick Noriea, got a heads-up on the arrest and found a pair of robbery convictions on Kirsh’s record. He yanked the case out of Slidell's municipal court and transferred it to 22nd Judicial District Court.
“They had brought him to Slidell City Court on a misdemeanor,” Noriea recalled with gusto. “The prosecutor there was working with my old investigator, who told me: ‘This guy is a badass, and they got him charged with some little thing.’
“I said, ‘Let me look at it.’ ”
Noriea also saw that Kirsh was suspected of firing at a house in a separate case. But authorities had trouble getting witnesses to cooperate, which Noriea blamed on the fear Kirsh inspired.
So he dropped the moving violation and instead charged Kirsh with aggravated flight and aggravated obstruction of a highway of commerce, an exotic count that carries a maximum penalty of 15 years. And although police never turned up a gun, or even saw one, Noriea also charged Kirsh with being a felon in possession of a firearm.
The offer then made to him was this: Plead guilty and serve 30 years in prison. Kirsh said no thanks.
A jury deliberated for 5½ hours before returning guilty verdicts against Kirsh on two of the original charges and a reduced charge.
The jury's vote is not in the court record, but several jurors said it was 10-2 on at least one of the charges, with the only two black jurors in opposition. Kirsh is black.
Judge Allison Penzato later threw out the firearm conviction, citing a lack of evidence. But it hardly mattered: Prosecutors invoked the habitual-offender statute. With no real wiggle room, Penzato sentenced Kirsh to life without parole.
“He went from a ticket that he didn’t want to pay to a life sentence,” Noriea crowed.
Like the prosecutor, Kirsh marveled at the outcome of his case, though it still baffles him.
"I have been trying to understand how is it even legal for the state of Louisiana to give a person a LIFE sentence for a traffic violation," he wrote to The Advocate.
Jurors aren’t supposed to consider potential penalties, but three of them told The Advocate they were troubled to hear they’d unwittingly handed a life sentence to Kirsh for his actions that day.
“Honestly, had a few of us known that could have been a possibility, I think we would have had more votes go the other way,” said Dana McKinney, the jury forewoman.
Kirsh’s lawyer, Russell Stegeman, said he still shakes his head over the outcome, which has been upheld on appeal.
“The evidence was horrible; the charges were ridiculous,” he said. “The DA just wanted to get this guy. It was really, really flimsy.”
District Attorney Warren Montgomery said he hasn’t lost any sleep over Kirsh’s fate. Even if Kirsh didn’t hurt anyone in the chase, it was only a matter of time before he did, the district attorney said.
“I have no regrets whatsoever about that guy,” Montgomery said. “He needs to be off the streets.”
Not on the table
Gov. John Bel Edwards has made no secret of his desire to end Louisiana’s status as the world’s leading jailer, and last year he strongly backed a slate of reforms aimed at achieving that goal.
The bills passed, and Oklahoma is expected to become America’s top jailer sometime this year.
But notably absent from the 2017 debate was any discussion of changing the 10-2 law — in part because measuring the law’s effect on incarceration seemed so challenging and also because any change would have been politically perilous.
Not that anyone has asked him, but Bobby Byrd, who will spend the rest of his life in prison for running from the cops, has some ideas about what the Legislature ought to do.
“Eliminate the 10-2, and change the habitual-offender laws,” he wrote. “Take drug offenses out of it when it’s obvious the offender is clearly an addict. It’s cheaper to rehabilitate than incarcerate.”
Byrd, who is now in his sixth year of a life sentence, admits he never should have run from police. But he portrays himself as a nonviolent drug addict and a schizophrenic — someone who needed therapy, not a lifetime behind bars.
“I didn’t hurt nobody, didn’t use my vehicle as a weapon,” he said. “There was no specific victim, nobody saying, ‘He did this to me.’ None of those type of things. All I did was, I drove away from the officers.”