Government & Politics
 

In rare bipartisan accord, lawmakers backed abolishing split-jury verdicts; now it’s up to voters

Anita Zervigon-Hakes

Meeting with the New Orleans Coalition, Sen. J.P.Morrell, right, talks up Amendment 2. With him, left to right: Mario Zervigon, meeting facilitator; State Rep. Royce Duplessis and Sarah Omojola, former counsel to the Southern Poverty Law Center.

In 1898, Louisiana reversed its requirement that juries reach unanimous verdicts in order to convict people charged with felonies. Why? The racist underpinnings of that reversal were stated explicitly: “in order to protect the purity of the ballot box and to perpetuate the supremacy of the Anglo-Saxon Race.”

Today in Louisiana, only 10 of 12 jurors need to agree to convict a woman, man, or youth charged with a noncapital felony, even when that conviction carries an automatic life sentence.  Only two states, Oregon and Louisiana, allow non-unanimous juries for such felonies.

In 2018, an era of great political partisanship, our lawmakers in Louisiana, a deep red state, demonstrated that they can work together across party lines. They have made history by approving a proposed amendment to the state’s Constitution. If approved, the amendment would require unanimous juries to convict a defendant of a felony.

To submit an amendment to the state Constitution for voter approval requires a super majority of two-thirds of each chamber, within one legislative session.

The unanimous jury bill first passed the Louisiana Senate with an impressive 27 to 10 (73 percent) vote, and then the House by an even more impressive margin of 82 to 15 (85 percent).  The bill’s supporters had to compromise to get the proposal passed. They agreed that the bill would not be retroactive and that it would not go into effect until January 2019.

On November 6, Louisiana citizens can vote YES for Amendment 2, thereby requiring that juries reach unanimous verdicts before they can convict. Here is how the ballot will read: (CA NO 2 (Act 722 – SB 243) Do you support an amendment to require a unanimous jury verdict in all noncapital felony cases for offenses that are committed on or after January 1, 2019? (Amends Article I, Section 17(A))

Interested parties on both sides have asked: How did this “long shot” happen? We believe legislation is like making sausage; it requires a mixture of elements that can “hang together” and not become a toxic stew.

To get agreement on difficult legislation takes strong leadership, the creation of a common bond, favorable timing, sound information, political support on all sides, and listening to others with a willingness to compromise.  All of these things were present as the House and Senate deliberated.

When Senator J.P. Morrell, a New Orleans Democrat, introduced the legislation, he believed there was only a slim chance it would pass, but he felt it was crucial to have the discussion.  Strong backing by former Grant Parish District Attorney, Ed Tarpley, a Republican, helped bring over district attorneys and sheriffs across the state, a group normally resistant to criminal justice reforms. Eventually the Republican leadership swung around.

Baton Rouge state Senator Dan Claitor was among the Republicans who joined Democrats in strongly backing the amendment. “Is 10 out of 12 good enough for your children? Is 10 out of 12 good enough for your wife?” Claitor  challenged fellow legislators. “If you’re a lover of freedom, I would suggest a vote for this bill to let citizens decide is the right thing to do.”

Proponents stressed our common bond as Americans and as a free people.  At a meeting of the New Orleans Coalition, a non-governmental group of progressive activists, Morrell said it was important to fellow legislators that our founding fathers were keenly aware of why people fled tyranny to this new land.  In the words of our first vice president and second president, John Adams: “It is the unanimity of the jury that preserves the rights of mankind.”

In 2017, Democratic and Republican lawmakers passed impressive prison reforms, and they are proud of the support that their reforms have had.  Together they saved taxes, reduced the embarrassment of Louisiana being the “incarceration capital of the world,” and, of course, they gave thousands of juveniles and adults a decent chance of claiming a new life—good for them, good for their families, and good for all of us Louisianans!

Criminal justice and incarceration reforms were supported by the billionaire Republican Koch Brothers, the Voice of the Experienced (a coalition of formerly incarcerated men and women), and The Innocence Project, which fights wrongful convictions.

Those wrongly convicted and freed by The Innocence Project have offered convincing accounts of how non-unanimous juries were the reason they had been convicted. Many statewide newspapers supported the reform measures, as have the Southern Poverty Law Center, the American Bar Association, the ACLU, and the Koch Brothers-funded Vera Institute, among many others.

Legislators learned that convictions by split juries result in:

  • Shorter deliberation regardless of a person’s sex, race, religion, or economic status. Jurors did not feel compelled to discuss a case once 10 people were found to agree.
  • More innocent people convicted. Though data is not available in all parishes, in a hard-hitting series of reports the Advocate found that between 2011 and 2016, 40 percent of the recently exonerated were convicted by non-unanimous juries.
  • More plea bargains and convictions, especially of black defendants.

One former inmate, Glen Davis, maintained his innocence and did not plea bargain. Convicted of second-degree murder at age 19 by a non-unanimous jury, he was sentenced to life without parole. He had been in prison for 14 years when The Innocence Project found that prosecutors hid evidence linking another person to the crime. Kia Stewart, at age 17, was convicted of second-degree murder and sentenced to life without parole by a 10-2 jury. He spent 10 years in Angola before being exonerated.

Through our political and prison outreach work, we have seen up close that under threat of non-unanimous jury verdicts, inmates plea-bargained when they didn’t need to.  Even worse, a number of inmates were found to have been wrongly convicted; they served prison sentences despite their innocence.

One of them, Jerome Morgan, served 20 years for a crime he did not commit; he is now a leader in the Amendment 2 campaign.  Another, Calvin Duncan, was freed after serving more than 28 years in prison. His lifetime work is now supporting those who have reentered society after many years of incarceration. When you read the descriptions of the trials of these men and others who were freed, it becomes clear that the fault often lay with non-unanimous juries.

In his closing argument before the State Senate, Morrell spoke of how the non-unanimous jury “was born of a fusion of racism and disenfranchisement.” He called it a “a self-defeating, illogical position to have two jurors say, ‘We don’t think he did it,’” and then hear prosecutors say we met our reasonable-doubt standard. “How do you have ‘beyond a reasonable doubt’ when two people doubt?” Morrell asked.

In his campaign for Amendment 2, Morrell says that “we have a one-time opportunity to correct a 138-year-old injustice, end this last stand of Jim Crow and bring Louisiana in line with the other 48 states in the USA. It’s time to take a stand and right a wrong that perpetuates injustice in our state.”

Anita Zervigon-Hakes is President of the New Orleans Coalition. The Rev. William Barnwell is an Episcopal priest, who has worked in prisons for 30 years.

The opinion section is a community forum. Views expressed are not necessarily those of The Lens or its staff. To propose an idea for a column, contact Lens founder Karen Gadbois.

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