Two years after Louisiana voters overwhelmingly backed a state constitutional amendment requiring unanimous jury verdicts in future felony cases — repealing a state law that allowed verdicts to stand on a 10-2 jury vote — the United States Supreme Court on Wednesday heard oral arguments in a case that could overturn the split-jury guilty verdicts of more than 1,000 people still in Louisiana prisons.
Attorneys for Thedrick Edwards, who was convicted of a series of crimes including rape and armed robbery in 2007 by a split jury, went before the court on Wednesday to argue that its previous ruling — declaring non-unanimous jury verdicts unconstitutional — should apply to him and others like him.
For Edwards, who was convicted in East Baton Rouge Parish, the court’s decision on retroactivity may be his best chance at having his case reopened. But hundreds of people convicted just 80 miles away, in Orleans Parish, can look forward to another option.
On Dec. 5, New Orleans voters will elect a new district attorney to replace Leon Cannizzaro, who is retiring when his second term ends early next year. Both candidates in the runoff election — former Judge Keva Landrum and City Councilman Jason William — have pledged that they would support new trials for people with non-unanimous convictions, and will actively review those cases to determine which ones can be tossed outright.
But how that will work exactly — both procedurally and practically — is not entirely clear. Such a review would be a major project. According to the Promise of Justice Initiative, there are 324 people who were convicted in New Orleans on split juries and have since exhausted their appeals. Meanwhile, the DA’s office already has a backlog of new cases, due to court closures and the suspension of jury trials during the COVID-19 pandemic. On top of that, Landrum or Williams will take on an office that has seen its city budget allocation cut due to anticipated tax collection shortfalls from the pandemic.
324 Orleans Parish cases
One of those 324 people is Willie Gipson. In 1996, at 17 years old, Gipson was arrested for shooting and killing a man outside of the Florida housing project in New Orleans. The evidence against him consisted of one eyewitness — the victim’s wife — who said she had seen the crime take place from a second floor window of the apartment complex.
But a week after the crime she told the police that “it would be kind of like hard” to identify who did it and that she could “maybe” identify them if she saw a photo.
“Maybe if I see the photos I probably could because I really didn’t look, you know, really see him that well,” she told police.
But over five weeks after the crime, she picked Gipson out of a photographic line up, and testified against him at trial.
The evidence against him was not enough to convince two members of the jury at his trial that Gipson was guilty. But it didn’t matter. At the time, in Louisiana, a 10-2 split-jury was enough to find Gipson guilty and send him to prison for the rest of his life without the possibility of parole.
Like 80 percent of people still incarcerated on non-unanimous jury convictions, Gipson is Black. He remains locked up at the Louisiana State Penitentiary at Angola today.
Non-unanimous jury convictions, in which only 10 of the 12 members of a jury need to find a defendant guilty, have only been legal in two states — Oregon and Louisiana. In Louisiana the practice dates back a constitutional convention in 1898, which was held, according to one delegate, in order to “establish the supremacy of the white race.”
But since Gipson’s conviction — while he sat in prison — there has been a shift on the issue of non-unanimous juries at both the state and national level.
Following a Pulitzer-prize winning series by The Advocate that found Black defendants were 30 percent more likely to be convicted by a non-unanimous jury than white defendants, voters in the state in 2018 decided to ban 10-2 verdicts. Majorities in all but three Louisiana parishes voted in favor.
But the amendment only applied to cases that were opened in 2019 or later — not cases that had already been decided or were pending before January 2019 — leaving thousands of decided or pending criminal cases unaffected.
But then, in April of this year, the United States Supreme Court handed down a decision in Ramos v. Louisiana, finding that non-unanimous jury verdicts violate the U.S. Constitution. The decision had some limited retroactivity, applying to cases that were still considered “active,” meaning that defendants had not exhausted their appeals. More than six months later, hundreds of people whose cases fit that description have yet to be retried.
And around 1,600 people who, like Gipson, have exhausted their appeals — but were, nevertheless convicted under an unconstitutional, racist practice — have yet to find out if the ruling will provide them with a shot at a new trial.
Because neither the amendment vote nor the Ramos decision impacted every case decided by a 10-2 verdict, those who were convicted by non-unanimous juries and have exhausted their direct appeals have to wait to hear what the Supreme Court decides in Edward’s case.
In June of this year, in response to a petition for a new trial filed by Gipson to the Louisiana Supreme Court to review his case, Chief Justice Bernette Johnson said she believed the Ramos decision should be applied retroactively in the state regardless of what the US Supreme Court finds.
“Defendants convicted by non-unanimous jury verdicts are prisoners of a law that was designed to discriminate against them and disproportionately silence African American jurors,” she wrote. “Simply pledging to uphold the Constitution in future criminal trials does not heal the wounds already inflicted on Louisiana’s African American community by the use of this law for 120 years.”
But the majority of her colleagues — all white men — apparently disagreed with her assessment, and Gipson’s petition was denied.
One month later, however, candidates began qualifying to run for Orleans Parish DA. The incumbent, Cannizzaro, announced at the last minute that he would not run for a third term, leaving Williams, Landrum, former Judge Arthur Hunter and former Judge Morris Reed. Landrum and Williams won the most votes in the Nov. 3 primary, advancing to the Dec. 5 runoff.
Though the candidates have differing visions for how the office should be run — Landrum is widely seen as the more moderate of the two — they have both run on a criminal justice reform platform, a counterpoint to Cannizzaro, a traditional, tough-on-crime prosecutor.
And in the early days of the race, they both committed to reviewing non-unanimous convictions out of Orleans Parish.
“The Supreme Court may not address retroactivity,” Williams said at a forum in September. “But as DA, I will. If non-unanimous juries are not fair, then they can’t be fair for the ones that happened in the past.”
At the same forum, Landrum said that she believed “everyone who was convicted by a non-unanimous jury should in fact have the opportunity to have their case reviewed.”
How the 300-plus non-unanimous jury cases out of New Orleans proceed through the court in the coming years depends to some degree on what the federal and state courts decide with regard to retroactivity. If the US Supreme Court rules in Edwards that their decision in Ramos should be applied retroactively, those cases — along with the 1,200 additional non-unanimous cases throughout the state — would be entitled to a new trial, the same as those cases that had not had their convictions finalized.
If the US Supreme Court rules against Edwards and finds their decision in Ramos is not retroactive, Louisiana courts could still decide that it should be — as Chief Justice Johnson suggested they should do in Gipson’s case. So far, however, state judges appear to have been waiting on the federal court ruling to make any decisions.
Another possibility would be for the Louisiana State Legislature to pass a law mandating new trials for people convicted on non-unanimous juries.
But should none of those forms of relief take place, defendants with finalized non-unanimous jury verdicts will have the outcomes of their cases to a large extent determined by the actions of the next DA.
In Orleans Parish, both Williams and Landrum have said that they would support new trials for people who had non-unanimous convictions and would not file procedural objections to post-conviction relief applications for those defendants.
But it’s unclear whether that would guarantee them a new trial.
Jamila Johnson is managing attorney for the Jim Crow Juries Project at the Promise of Justice Initiative — a legal non-profit that represented Evangelisto Ramos in his case before the Supreme Court that determined non-unanimous juries were unconstitutional. The organization has been identifying and representing in court defendants who were convicted on non-unanimous verdicts throughout the state.
Johnson said that even if the next Orleans Parish DA does not object to new trials for individuals with finalized convictions, a judge may not necessarily go along with it. In order to have a finalized conviction reopened by the court, a defendant must file a post conviction relief application that makes a legal claim to why their conviction was invalid — in these cases, the fact of a non-unanimous jury verdict. Prosecutors would then have the opportunity to file an objection.
But even if they don’t, Johnson said, the petition will be in the hands of the presiding judge, who may decide not to grant it.
“Presumably, the new district attorney will not file procedural objections for people who are seeking to bring a post conviction relief application,” said Johnsnon. “Does that mean, automatically, that the judge is going to find that the post conviction relief application has merit and to grant a new trial? Probably not.”
“Very often we see district attorneys, not necessarily in Orleans, just not responding,” she said. “The court just goes about its inquiry regardless.”
But both candidates said at a forum in September that they would specifically “support the grant of new trials for people with final convictions based upon non-unanimous juries.” And Richard Davis of the Innocence Project New Orleans said that if both the defense and the prosecutors agree that a conviction should be vacated — and then potentially retried — it was unlikely the judge would object.
“I don’t think there has been a case in Louisiana in which a prosecutor has wanted to vacate a conviction and the defendant wanted a conviction vacated, and the judges said they wouldn’t,” he said. “We have never had a situation where the defense and the prosecution both wanted to vacate a conviction but the judge hasn’t also wanted to vacate the conviction.”
Orleans Parish Criminal District Court Chief Judge Karen Herman declined to comment.
In addition to declining to file procedural objections, both Williams and Landrum have said that they would independently review non-unanimous jury verdicts to determine whether or not they even need to be retried, as opposed to tossed outright or resolved through some type of plea deal.
Johnson said that was a good sign, noting that many non-unanimous convictions are based on shaky evidence in the first place, and warrant a review.
“What we see time and time again on these non-unanimous jury verdicts when we look at the Court of Appeals, they all have really strong sufficiency of the evidence claims,” Johnson said. “Where there really were other views or alibis or self defense arguments that were made. And jurors who believed those or who presumably thought the state didn’t do enough to show that that wasn’t true.”
Whatever the candidates’ plans, and however Orleans Parish judges react, the next DA will have another issue to contend with to accomplish such an ambitious project: a shrinking budget.
Last month, the City Council passed a budget that slashed the allocation to the DA’s office. Mayor LaToya Cantrell’s proposed budget cut the office by 20 percent. And a last minute amendment brought by Jason Williams that increased the public defenders allocation cut the DAs budget by another $300,000 dollars, sending it to the Orleans Public Defenders, which for the first time received a city allocation that was more than 50 percent of the DA’s. Cannizzaro said the additional cut “spells doom for many of our still-furloughed employees and inflicts excessive damage to the continued operations of this office for the next administration.”
On top of the budget cuts, the office will be confronting a backlog of hundreds of active cases due to the suspension of jury trials and repeated court closures at Tulane and Broad.
Still, each candidate has pledged to devote resources to reviewing finalized non-unanimous convictions. Both have said that the reviews will take place as part of a broader conviction integrity unit that they plan to establish to to look more at potential past wrongful convictions, as well as excessive sentences. And each said they were open to outside partnerships to look at the cases.
But those case reviews will require a considerable amount of work — including gathering documents, reviewing transcripts and reports, and re-interviewing witnesses.
Richard Davis at the Innocence Project New Orleans has spent years looking back at potential wrongful convictions out of New Orleans, and analyzing the evidence and potential procedural missteps.
“If they’re doing it the right way, which is what I hope they would be doing, it wouldn’t just be narrowly looking at what happened at the trial,” he said. “That would need to be a starting point. But you would also want to look at all the police and prosecution files related to the case and make sure that any other legal issues or when any other disclosure issues need to be resolved.”
Davis said particularly if the DA plans to retry a case, the office needs to make sure that all the potentially exculpatory evidence is turned over to the defense — which is required under law. When that evidence is not turned over, it is known as a Brady violation — which prosecutors in Orleans Parish have been accused of repeatedly.
“I think one thing we see in so many cases of Orleans parishes is Brady violations,” Davis said. “And so you want to make sure if you retry the case, you weren’t committing another Brady violation. So I think it would require, you know, you would certainly make sure you need to be getting all the paper and not just kind of trying to present the exact same trial again.”
In an interview with The Lens, Williams said he would like to have at least a few attorneys dedicated to the task, along with some investigators and paralegals. He also said he would enlist outside help, potentially from the Promise of Justice Initiative, given the amount of work they had already put into the issue.
“I think having them involved will make the process more efficient, in terms of finding and seeking justice, and the truth,” he said. “But it’ll also make it less costly to taxpayers. Because as you know, I mean, everyone’s budget is going to be a bit tighter, as we emerge from the self induced coma caused by COVID.”
“Reviewing a file that has already compiled all the pertinent information is a whole lot easier than trying to rebuild a file ourselves,” he said. “Now, granted, there’s also a matter of verifying certain information. That’s important. That’s going to happen, but I think we’re going to get some efficiencies, and in terms of what cases should be prioritized.”
Williams said he was committed to have an entire Civil Rights Division — under which the conviction integrity unit would fall — up and running in the first 100 days, but couldn’t determine exactly how long reviewing the non-unanimous cases would take, especially given the current backlog of cases at Criminal District Court due to the COVID-19 closures.
“I can’t answer that right now, because we also have the bottleneck of current existing cases that are still in the bottleneck because of court closures,” he said. “So it’s really tough to say now, how quickly that process will move, what I can commit to, is that we will have a staff of lawyers investigating, working on it.”
Landrum declined an interview request for this story, but In a written statement, she reiterated that she was committed to reviewing non-unanimous cases despite budget constraints and would work with community partners “as needed.”
“While I understand the difficulties of budget constraints in light of COVID-19, my Administration will specifically allocate resources to Ramos cases to ensure that those individuals who were previously convicted have had their cases reviewed with a fresh set of eyes,” she said.
Johnson at the Promise of Justice Initiative said that the organization hasn’t been in contact with either candidate about a potential collaboration, but that they would be open to working with whoever eventually takes office in January.
The politics of reform
The reasons each candidate gives as to why they would be better equipped to review non-unanimous jury verdicts reflect the broader pitch each has made to voters about why they should become the next DA.
Williams has cast himself as the true outside reformer, and the only candidate not beholden to the system as it currently stands, while Landrum has said that her time as a prosecutor and interim DA in 2007-2008 has given her the necessary experience to reform the office.
“As the former acting DA, I am uniquely qualified to review the evidence and determine if cases should be retried or dismissed,” Landrum said in a statement. “Unlike my opponent I am also aware of the victim impact and psychological concerns when asking a victim to relive a crime of violence.”
But Williams pointed specifically to Landrum’s time as a prosecutor in the Harry Connick administration — which became notorious for wrongful convictions based on withholding of evidence and other questionable prosecutorial practices — as evidence that she wouldn’t be able to fairly assess past cases.
“When you are from the institution, or when you’ve been trained by the person who caused probably the largest volume of wrongful convictions in every way, there’s a little bit of inherent sort of protectionism that comes from that, from the person I’m running against,” Williams said.
On the other hand, Williams said that he has been working to unearth bad convictions for his “entire life.”
“So there’s a very big difference there. I’ve been fighting for people who were wrongfully convicted my entire life, from whether it was at the Innocence Project, whether it was just doing pro bono work, or just in my capacity as a lawyer. So that’s always been my desire since I’ve been practicing. The person I’m running against, it’s been their desire to convict as many people — as a prosecutor, I don’t think it’s a dig to say the goal there was to win cases, all cases, regardless of a split decision.”
The conviction integrity unit set up by the next DA won’t be the first attempt at one in Orleans Parish. In 2014, with dedicated city funding — pushed for by Jason Williams on the city council — DA Cannizzaro’s office teamed up with the Innocence Project New Orleans to look back at old convictions.
But that project was short lived — it lasted just over a year— and was relatively unsuccessful.
“When the project started off, they did not demonstrate any significant shift in the way they approached these cases,” Maw told NOLA.com after the partnership ended. “Because it wasn’t a priority, it was not worth the investment anymore.” Cannizzaro’s office blamed the city for cutting the budget for the project.
Conviction integrity units in general have had mixed success. This year’s annual report from the National Registry of Exonerations found that the units in DAs offices were responsible for over a third of the 143 exonerations that occurred in 2019. But it notes that many of the 51 conviction integrity units around the country are relatively inactive and produce few exonerations, which the organization says is “primarily a function of its structure and the resources the prosecutor’s office is willing to devote to its work, and its willingness to acknowledge past mistakes.”
But Jamila Johnson at PJI said that she is hopeful that the next Orleans Parish DA will take seriously the need to review convictions based on non-unanimous juries.
“We have candidates who believe that if you are unconstitutionally convicted with a non-unanimous jury verdict, you should have some remedy for that,” Johnson said. “And it’s really positive to hear both candidates think in those terms.”
“How that plays out,” she added, “is absolutely uncertain.”