A public defender has asked an Orleans Parish judge to strike down the provision of the Louisiana constitution that allows for less than unanimous jury verdicts in most felony cases, arguing in an unusual hearing that the state's system is rooted in a legacy of racism and white supremacy.

The defense attorney, Colin Reingold, asked Criminal District Court Judge Arthur Hunter to declare the provision illegal under the U.S. Constitution and order jurors to reach a unanimous verdict in the upcoming murder trial of Christopher Lee.

Louisiana requires only 10 of 12 jurors to come to the same conclusion about a defendant's guilt, unless the case involves the death penalty. 

The state's constitution says that a case "in which the punishment is necessarily confinement at hard labor shall be tried before a jury of 12 persons, 10 of whom must concur to render a verdict."

A case where the punishment "may be confinement at hard labor or confinement without hard labor for more than six months" is tried before a jury of six persons, who must reach a unanimous verdict.

Reingold contends that allowing 10 out of 12 jurors to convict in felony cases is designed to marginalize the influence of black jurors in Louisiana and that it violates Lee's right to equal protection under the law.

An Orleans Parish jury deadlocked last year after six hours of deliberating Lee's fate, but District Attorney Leon Cannizzaro has said he will retry the 26-year-old for an armed break-in nearly seven years ago that left a Holy Cross School graduate dead and a friend wounded.

"Louisiana is the only place in the nation where a defendant can be sentenced to life without parole as a result of a conviction by a non-unanimous jury," Reingold said.

The only other state that allows for split verdicts, Oregon, requires juries to reach a unanimous verdict when a life sentence is at stake. Criminal trials held in federal court in Louisiana — and every other state — require unanimous verdicts.

Countless defendants have unsuccessfully petitioned judges to require unanimous verdicts in their cases. But Reingold's motion was more detailed than most, and Hunter entertained it at a lengthy hearing last week.

Prosecutors urged Hunter to reject Reingold's request, portraying the legal challenge as one that has failed repeatedly to gain traction in higher courts. They noted that the U.S. Supreme Court considered the legality of Oregon's non-unanimous jury system in 1972 and concluded the practice did not violate criminal defendants' constitutional rights. 

Several defendants have challenged the law since then without success, from the serial killer Derek Todd Lee to Corey Miller, the rapper known as C-Murder who was convicted, by a 10-2 jury vote, of fatally shooting a teenager inside a Harvey nightclub. 

The Louisiana Supreme Court has upheld the system on several occasions and, in 2009, overturned a decision by a Calcasieu Parish judge who had ruled that suspects in two second-degree murder cases were entitled to unanimous verdicts. 

Hunter, who is expected to rule Thursday on Reingold's motion, heard testimony last week from two experts who discussed the racial history and implications of Louisiana's less than unanimous jury verdicts.

Lawrence Powell, a historian, author and emeritus professor at Tulane University, attributed the state's split-verdict system to an "invidious racial intent" among lawmakers who gathered at a constitutional convention in 1898 for the purpose of disenfranchising blacks and poor whites. It was during that convention that the state switched from requiring unanimous jury verdicts to one permitting convictions by a vote of 9-3. 

The convention's president, New Orleans lawyer E.B. Kruttschnitt, told the delegates, all of whom were white, that they had been summoned "to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics."

The delegates apparently reviewed data at the time that showed blacks made up 14.7 percent of the electorate, Reingold noted, meaning a proportional representation would have called for an average of two black jurors on a 12-member jury.  

"Everything is about race with this thing," Powell testified. "The whole thing is saturated, drowning in it."

The state's later adoption of a 10-2 standard, at the 1973 constitutional convention, came on the heels of a similar period of racial unrest, Powell said, referring to the civil rights movement. The River Parishes, in particular, were a hotbed of racial tension during that time, he testified.

The 1973 decision, Powell said, amounted to a compromise among lawmakers, some of whom had pushed for a switch back to requiring unanimous jury verdicts.

"There was a growing white concern about the breakdown of law and order," Powell said. 

Assistant District Attorney Laura Cannizzaro Rodrigue argued that the state's non-unanimous jury verdicts were not born of racial animus but from a desire for judicial efficiency. She said there was no "smoking gun" evidence to support Powell's theory, adding that courts have repeatedly rejected the claim that less than unanimous verdicts in Louisiana are rooted in racial discrimination. 

Kim Taylor-Thompson, a professor at New York University School of Law, said non-unanimous verdicts weaken the deliberative process, in large part by suppressing debate and reducing the participation and influence of minority jurors. She said allowing non-unanimous juries circumvents a number of legal protections intended to prevent racial bias in the criminal justice system, 

"What we are prohibiting from the front door we're allowing in through the back door," with less than unanimous verdicts, Taylor-Thompson testified.

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