If Louisiana ever does require a unanimous jury for a criminal conviction, history will give much of the credit to Calcasieu Parish District Attorney John DeRosier.
The turning point came when a House committee was considering a bill to call a referendum on an amendment to the state Constitution, which currently allows a guilty verdict, save in capital cases, by a vote of 10-2.
The fate of the bill was regarded as uncertain until DeRosier took his seat at the witness table. By the time he was through, all 16 members of the committee couldn't wait to vote for it. No surprise there, you may be saying to yourself. If a professional advocate cannot change a few minds, who can?
Trouble is, DeRosier was urging legislators to vote against. He and his Sabine Parish counterpart Don Burkett wanted Louisiana to retain majority verdicts when unanimity is required in federal courts and every other state bar Oregon. Not only did they fail in that mission; they made it impossible for anyone to vote their way without seeming keen to bring back Jim Crow.
DeRosier began by conceding that our majority verdict law was born amid “the vestiges of slavery,” but that was “138 years ago.” In fact, it was adopted at the Constitutional Convention of 1898, so we had better hope DeRosier is better at law than he is at math. Nobody noticed that he sucks at subtraction, however, because DeRosier airily added, “It is what it is.”
What he meant, presumably, was that, however reprehensible the origins of the law, there may still be valid and race-neutral reasons for retaining it all this time later. But that's not how it came out. DeRosier's remarks were bound to give the impression that he did not give a hoot that the explicit purpose of the 1898 convention was “to perpetuate the supremacy of the Anglo-Saxon race,” and that the majority verdict law was adopted to render the votes of black jurors nugatory.
That was certainly the impression DeRosier gave the committee's black members, who took turns lambasting him. Leading them was Ted James, D-Baton Rouge, who assured DeRosier that the voters of Calcasieu Parish, which is 25 percent black, would hear about this. The black legislators were so furious and so offended that no way could their white colleagues vote to keep majority verdicts.
One of them, John Stefanski, R-Crowley, noted that one of his heroes had been a firm believer in unanimous jury verdicts. He said it twice to make sure that everyone knew he was not on DeRosier's side but was in total agreement with that great man, former U.S. Supreme Court Justice Scalise.
No cigar. Antonin Scalia was on the Supreme Court until he died two years ago. Congressman Steve Scalise of Metairie is House Majority Whip. It is likely that more people picked up on that than knew about the constitutional convention of 1898.
By then, DeRosier and Burkett must have wished they'd stayed home. They were not there on behalf of the District Attorneys' Association, which had taken no position on the bill. Burkett explained this was because not all its members were against the constitutional amendment. Denise Marcelle, D-Baton Rouge, was vastly amused at the notion that DAs require unanimity for a political decision but not before sending a defendant to prison for life.
There wasn't much point in further argument from our hapless prosecutors — certainly nobody cared that a unanimity requirement would make their job harder — but DeRosier could point to an irony too. Other countries are abandoning jury unanimity just as Louisiana may fall in line with the American norm and embrace it.
Learned judges and advocates who favor jury unanimity always cite English authorities, going back to medieval times, in support of the proposition that it is a bulwark of liberty. Yet since 1967, if English juries can't reach a unanimous decision after a couple of hours, a judge will tell them 10-2 is OK. In Scotland, there is no such thing as a hung jury. Cases are settled by a simple majority out of 15 jurors.
Email James Gill at Gill1407@bellsouth.net.