In Louisiana, there's an unusual and long-standing allowance for split jury verdicts in felony cases.
Louisiana is one of only two states – Oregon is the other – that allow people charged with felonies to be convicted when only 10 of 12 jurors agree on guilt. Through the early and mid-1800s, Louisiana required unanimous verdicts, but began allowing supermajorities in the latter part of the century.
On Nov. 6, Louisianians will have a chance to amend the state constitution to require that future juries return unanimous verdicts.
But there's much more to the story, as an exhaustive, first-of-its-kind analysis by The Advocate reveals.
How one law deprives, discriminates, incarcerates like no other
The law that allows a Louisiana jury to send someone to prison for life without the consensus of all 12 jurors did not happen by accident. It was enshrined in the notoriously racist 1898 constitution, which sought to disenfranchise newly empowered black people in the years after Reconstruction.
These days, 10 votes are required for conviction instead of the nine called for in the 1898 constitution. Today’s defenders of split verdicts say Louisiana’s law now stands not for racism but efficiency, by limiting hung juries and potential retrials.
But the law still has clear racial implications, according to an exhaustive analysis by The Advocate.
Although the majority-verdict law disadvantages all defendants, the newspaper's review found that its effects on black people accused of crimes are especially profound. It acts as a capstone to a trial system that becomes more tilted against black defendants at each stage: when jurors are summoned, when they’re picked for juries, and in deliberation rooms, where voices of dissent can be ignored.
Understanding Louisiana's non-unanimous jury law findings: Interactive, animated slideshow
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In Louisiana's split-verdict rule, white supremacist roots maintain links to racist past
The fix was in against black Louisianians when 134 delegates gathered at Tulane Hall in New Orleans in February 1898 to draft a new state constitution.
Their marching orders: whitewash the voter rolls as thoroughly as possible — without running afoul of federal law.
E.B. Kruttschnitt, a lawyer and New Orleans school board president who led the 1898 convention, bluntly described the gathering’s purpose.
The goal was to eliminate "the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics," he said.
Many of the laws of the 1898 convention have been erased over time, chiefly by court rulings and federal legislation during the civil rights era.
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But one product of that ugly meeting remains largely intact: a constitutional provision that abandoned Louisiana’s long-standing practice of requiring unanimous jury verdicts to send people to jail. After the convention, only nine of 12 votes would be needed, a practice unique in America.
Walt Handelsman animation: In Louisiana, the film is better known as '10 Angry Men'
If you like the 1957 film classic "12 Angry Men," then you'll love Louisiana's version ...
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Is it a truly a 'jury of one's peers' when black people are underrepresented?
The right of a defendant to be judged by “a jury of one’s peers” is a bedrock concept in American justice, but when lawyers started to pick a jury for his 2012 trial, Terren Johnson, accused of breaking into a woman’s home and trying to rape her, might have wondered where all of his peers went.
Only four black people, all women, were among the 28 prospective jurors who filed into the courtroom that morning in East Baton Rouge Parish, where nearly half the population is black.
His case was far from an anomaly.
With a trial or not, unusual split-verdict law helps fill Louisiana prisons
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.
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.
State Senate passes bill to let voters decide fate of split-verdict rule
The state Senate recently advanced a bill that represents the most serious challenge in nearly a half-century to a state law that allows for convictions in serious felony cases without unanimous juries.
The bill, which needed a two-thirds majority, passed with a 27-10 vote, following spirited appeals by its author, Sen. JP Morrell, D-New Orleans, and other lawmakers.
For prosecutors, Louisiana's split-verdict law produces results
Sen. Dan Claitor, R-Baton Rouge, served as an assistant district attorney in New Orleans in the late 1980s. He recalled filing more severe felony charges than the evidence might have warranted against some criminal suspects — simply to ensure that jury unanimity would not be required.
Prosecutors in Louisiana have broad discretion over such choices. For instance, they can charge a suspect found with a modest quantity of illicit drugs on a possession count — or alternatively, with possession with intent to distribute the drug.
The former would be tried by a “six-pack” jury, where unanimity is required. The latter, because the sentence is necessarily “at hard labor,” demands a jury of 12 — only 10 of whom must agree, even if they ultimately find a defendant guilty only of simple possession.
The Advocate’s review of thousands of jury trials over a six-year period — including those involving both types of juries — suggests that the tactic Claitor revealed may in fact improve prosecutors’ chances.
State House committee unanimously votes to send measure on jury unanimity to full House
A bill that would let Louisianians vote on whether to continue allowing split jury verdicts in felony cases -- or to require unanimous votes -- was approved unanimously by a key House committee and heads to a vote of the full House.
But it didn't happen without any feathers being ruffled. The meeting of the House Committee on the Administration of Criminal Justice featured some testy exchanges between two Louisiana district attorneys -- John DeRosier of Calcasieu Parish and Don Burkett of Sabine Parish -- and several African-American legislators, in particular state Rep. Ted James, D-Baton Rouge.
“I’ve heard a lot about this being a vestige of slavery,” DeRosier said of the law allowing for split verdicts, which he urged the committee to keep in place. “I’m not proud of that, and I have no reason to doubt it. But it is what it is.”
James called those comments unacceptable, and he was joined by several colleagues. The measure calling for a referendum passed the committee unanimously.
Gov. John Bel Edwards is a quiet supporter of requiring Louisiana juries to return unanimous verdicts
The bill to put on the Nov. 6 ballot a measure allowing Louisianians to vote on whether juries in felony cases should have to come back with unanimous verdicts doesn't require the governor's signature or input. Instead, it needs the support of two thirds of each chamber in the Legislature.
Nonetheless, Gov. John Bel Edwards announced recently that he supports the move, citing the law's racist origins and adding: "We are an outlier when we shouldn’t be."
As Louisiana mulls change to split-verdict law, Oregonians fret they'll be all alone
For 84 years, Oregon has shared a constitutional quirk with Louisiana that allows criminal trials to be decided by nonunanimous juries.
In every other state — and the federal court system — juries must reach unanimous verdicts in felony cases.
It's an unlikely kinship for two states that diverge on everything from politics to topography — and an increasingly unwanted distinction in this drizzly corner of the Pacific Northwest.
"It puts us in the same category as Louisiana, and people don't like that," said John Hummel, district attorney of Deschutes County, one of Oregon’s largest.
New York Times editorial page weighs in on Louisiana's unusual law allowing split verdicts
As the Louisiana House prepared to take up a bill allowing a statewide referendum on jury unanimity, the New York Times' editorial page weighed in.
"How many jurors does it take to deliver a guilty verdict?" the newspaper asked.
"In 48 states, the answer is simple: All of them. Juries in felony cases must agree unanimously in order to convict. The rule is the same in federal trials, and for good reason."
The Times cited The Advocate's research on the question -- in particular the newspaper's finding that the law has racially disparate impacts -- and urged the House to pass the bill.
Louisiana's unique split-verdict law could be on its way out
The state House approved a bill that will allow Louisianians to vote on whether to keep a law, born in the Jim Crow era, that allows for split jury verdicts in felony cases. The measure needed 70 votes in the House, and cleared that bar easily, passing by an 82-15 margin. It had already passed the Senate by the required two-thirds margin.
A constitutional amendment to require unanimous verdicts will be on the Nov. 6 ballot.
The bill to undo the practice enshrined in the 1898 constitutional convention got a boost from conservative lawmakers, including Rep. Sherman Mack, R-Albany, who led support for the bill on the House floor. "It's time Louisiana got it, and it's time we got on board," Mack said.
Should the proposal be approved by voters, it would require unanimity starting Jan. 1, 2019. The law would not apply retroactively. It does not require a two-thirds majority.
Amid push for jury unanimity, bill to keep jury votes secret becomes law
Even as the Legislature surprised many observers by passing a bill that will allow Louisianians to vote on a constitutional amendment requiring jury unanimity, the body also passed a law that seeks to cloak jury votes in more secrecy.
The bill -- signed into law by Gov. John Bel Edwards -- says that if jurors are polled on their verdicts, it must be done in writing, not orally -- as is often the custom now. It also says that a judge may place those polling slips under seal, with reasons, and that even if they are unsealed later, the jurors' names on those slips must be redacted -- making it harder for the public to see how individual jurors voted.
If voters on Nov. 6 pass the amendment requiring unanimous verdicts, the law will soon become moot, because there is no mystery about how each juror voted in a unanimous verdict.
Why are Louisiana jury votes often absent from court record?
So what was the jury vote? Was it unanimous? Were there holdouts?
While polling of juries simply wasn't done in hundreds of cases examined by The Advocate, there was an even larger group in which polling was done but kept out of the record. The practice varies by jurisdiction, but in some, like Jefferson Parish, the polling slips are kept under seal in most cases.
The Advocate was able to gather the data on nearly all of the jury votes there only with the help of the Clerk of Court's Office.
Orleans Parish, which has the busiest trial docket in the state, works under an antiquated record-keeping system, little of which is available on the court's cursory online "docket master." Verdict counts rarely show up there.
The court minutes from the February 2013 trial of Jarrell Arline on a charge of dealing cocaine are so cursory they border on cryptic.
Some Orleans judges said they have long torn up the juror polling slips as soon as they are read. Others file them into the record under seal.
Several judges agreed to unseal polling slips in a few dozen cases — a fraction of the total — at The Advocate's request.
Even then, some signatures on the slips are indecipherable. Others are confounding.
Changing law unlikely to cause slew of hung juries, data suggest
Require unanimity, the argument goes, and the state will be awash in hung juries, and thus costly retrials and delayed justice for crime victims.
Pete Adams, executive director of the Louisiana District Attorneys Association, conjured up that same specter when he testified March 20 before a Senate committee considering a bill to allow voters to change Louisiana’s system.
Adams said studies show that Louisiana and Oregon have far fewer mistrials than the other 48 states. He said some studies predict nearly 50 percent more mistrials would occur if Louisiana were to change its system.
Adams may be right. But data gathered by The Advocate show the number of mistrials is so small that even doubling them wouldn’t make many waves in Louisiana’s criminal justice system.
Louisiana split juries have convicted several people wrongly, but not enough data to discern a trend
There have been at least a dozen instances in recent times in which inmates who were found guilty by nonunanimous Louisiana juries later won their freedom, their convictions deemed bogus, according to a roster provided by the Innocence Project New Orleans.
Ten of those 12 men later received payments of up to $250,000 from the state’s Innocence Compensation Fund, state data show. Nine of those 10 men are black. To qualify for that money, a judge must declare — or the state must concede — that they were “factually innocent” of those crimes, a higher bar than just "wrongfully convicted."
Those figures, while troubling, are far too small to draw any statistical conclusions about whether divided juries are more likely to send innocent people to prison.
Split verdict in Cardell Hayes' trial shines light on how Louisiana's unusual law affects jury deliberations
One by one, jurors at the Orleans Parish courthouse were lining up to find Cardell Hayes guilty in the killing of Will Smith, a hero from the New Orleans Saints' epic Super Bowl win in 2010.
Juror No. 12 couldn’t stop the train.
Only 10 of 12 votes were needed for a conviction, and once it became clear that he and the jury foreperson were set on acquittal, the rest of the group tried to find a consensus without them.
Those 10 jurors would go on convict Hayes of manslaughter in Smith’s killing and attempted manslaughter for a shot that struck Smith’s wife, Racquel, in both legs.