Orleans Parish District Attorney Jason Williams’ office joined with defense attorneys on Friday to vacate the convictions of 22 people who had split-jury verdicts, many of whom have spent decades in prison.
“These convictions are unconstitutional, and the state has agreed to vacate them,” said Emily Maw, who heads the Civil Rights Division at the DA’s office, at the court hearing Friday during which the convictions were vacated. “We will proceed in these cases with prosecutions that are not infected with racial bias. Some will plead. Some will go to trial, where they may be convicted. Some will go home.”
Most of the defendants on Friday agreed to plead to lesser charges than those they were convicted of at a court date in the coming weeks. It wasn’t immediately clear how many of them will be released from prison as a result of their plea deals.
In an interview on Thursday, Ben Cohen, Chief of Appeals at the DA’s office, said that one of the convictions vacated on Friday “would clearly be re-prosecuted,” and that five of the cases would be reviewed by the offices Civil Rights Division to determine whether there were other civil rights violations in the case, or if the person was in fact innocent.
The move on Friday was the first concrete action taken on one of Williams’ more ambitious campaign promises: pledge to review every case out of Orleans Parish that had a non-unanimous verdict where the person is still in prison. The Promise of Justice Initiative, a local nonprofit working on non unanimous verdicts across the state, estimates that there are over 300 people still in prison stemming from New Orleans trials that ended in a split-jury verdict.
All the cases Williams’ office is reviewing involve prisoners whose non-unanimous verdicts are considered final, meaning they have exhausted their appeals. Louisiana was one of two states that allowed non-unanimous verdicts. A 2018 state constitutional amendment changed that, but it only applied to future cases, not cases that were already decided. Then last year, the U.S. Supreme Court found split verdicts unconstitutional, but the effect of the ruling was limited to cases that were still in the appeals process.
Williams told The Lens on Thursday that it marked the beginning of what the office is calling the Undoing Jim Crow Juries Civil Rights Initiative, in which attorneys in his office comb through split jury verdicts proceeding section by section of Orleans Parish Criminal District Court.
The hearing on Friday took place via Zoom in court Section G, where all the defendants had pending post-conviction relief applications in front of newly elected judge Nandi Campbell..
“This is really emotional,” Campbell, a former defense attorney, said during the hearing. “I moved here in 2008 and could not believe that there was such a thing as a non-unanimous jury verdict. Truthfully, in 2008, I could never imagine sitting here doing this, and being here to see this. So this is amazing.”
Under the state’s former non-unanimous jury law, if two of twelve jurors voted to acquit but the rest voted to convict, a person was still found guilty. The practice stemmed from a 1898 state constitutional convention that implemented Jim Crow legislation and whose purpose was, in the words of one delegate, to “reestablish the supremacy of the white race.” Legal historians have argued that the establishing non-unanimous jury verdicts was part of that broader purpose, as a means of nullifying the votes of Black jurors and making it easier to convict Black defendants.
The practice continued until the end of 2018. Following a campaign by civil rights advocates and a Pulitzer Prize-winning investigation by The Advocate, voters passed the constitutional amendment requiring unanimous jury verdicts. But that change only applied to cases that were initialized in 2019 or later.
Last year, however, in a case involving a New Orleans man convicted of murder in a 10-2 verdict and sentenced to life in prison, the United States Supreme Court ruled that non-unanimous jury verdicts were unconstitutional. But the decision did not apply to an estimated 1,500 people still serving prison sentences on non-unanimous verdicts throughout the state whose convictions had been upheld by state appeals courts. Another case is currently pending before the Supreme Court that will determine whether or not the court’s first ruling should be applied retroactively to those cases.
But Williams has said he doesn’t need to wait for that ruling, and will review all non-unanimous verdicts out of New Orleans regardless of what the court decides.
“We’re taking our own responsibility to repair the injustice, but also to make the system work fairly efficiently rather than waiting to be told one way or another, kicking and screaming how we’re going to do this,” Cohen said on Thursday. “And so it’s a proactive step.”
At the hearing on Friday, as defendants appeared via Zoom from correctional institutions around the state, prosecutors acknowledged in each case that each one had been convicted using a process that the U.S. Supreme Court has said violate the Sixth and 14th amendments to the Constitution. They agreed to waive all procedural objections and grant new trials.
Cohen said in the Thursday interview that the office chose to start with Section G in part to acknowledge the troubling legacy of former Section G Judge Frank Shea, who was notorious for holding jury trials as quickly as possible — once as many as six in a single day — often disregarding the due process rights of defendants in favor of efficiency, according to former defendants and lawyers who worked in his courtroom.
Friday’s hearing gave an occasional glimpse into the way cases were processed through the system decades ago. One of the men who had his conviction vacated on Friday, Terrance Knox, was convicted in 1996 of murder in a trial that lasted just a matter of hours, according to Cohen.
“Mr. Knox will correct me if I’m wrong, but the record that I have reflects that the entirety of his trial lasted two hours and forty two minutes, from beginning of voir dire through instruction,” Cohen said at the hearing. “Jury deliberations took another twenty minutes. No motions were filed on behalf of the defense counsel.”
Knox confirmed that had been the case.
Calvin Duncan, who was formerly incarcerated at Angola and helped lead the push to end non-unanimous jury verdicts, was also viewing Friday’s proceedings. Duncan had been tried in Section G himself, in front of Judge Frank Shea. His conviction in 1985 for first degree murder was a unanimous verdict, but he always maintained his innocence, and was eventually released in 2011 after agreeing to plea to a lesser charge.
“This is a great day, especially for Section G,” Duncan said. “Because in the past we have never got this kind of justice. I’m just happy that this is actually happening.”
Cohen acknowledged on Friday that there may still be more non-unanimous convictions out of Section G that the office does not yet know about.
“It’s my expectation that there will be other convictions that come before us that we will need to fix,” Cohen said. “And we appreciate the court’s attention and time, recognizing that this is not your problem, it’s a problem that was created 120 years ago that we are trying to remedy.”
The Promise of Justice Initiative has found that 80 percent of people still in prison on non-unanimous verdicts throughout the state are Black. And of the 22 people who had their convictions vacated on Friday, 21 of them were Black.
‘It’s a cumbersome process’
It is unclear which section of court will come next in the review, Cohen and Maw said on Thursday. Cohen said the process in determining that will involve reviewing post conviction petitions across sections to see which ones make claims of non-unanimous verdicts, along with “working with our partners in the community, filling out pieces,”
“It’s a cumbersome process,” Williams said.
Cohen also confirmed on Thursday that the office would review the non-unanimous convictions of people who are no longer in prison but are still on parole, if they file an application for post-conviction relief.
It is not clear that every judge in the Criminal District Court will be as amenable to vacating non-unanimous convictions as Campbell was on Friday.
Emily Maw said that judges usually aren’t in a position to step in if both parties agree to do something like vacating a conviction.
“So if there isn’t a controversy, it’s not usually what the judge would do,” she said. “If everybody’s in agreement is not generally the role of the judge to create a controversy.”
Cohen agreed, but acknowledged that some Orleans Parish judges may have different thoughts on the issue.
“They can’t say, ‘I’m going to impose a procedural bar against this defendant that the state has affirmatively waived, because the city believes that that bar is racist,’” Cohen said. “I’m not saying they won’t try. They shouldn’t.”
With the potential for dozens of defendants to get new trials, and many more to receive reduced sentences, Williams stressed that the DA’s office is also working to reach out to victims involved in the cases.
“We have another side of the office working really, really hard to put in place more victims advocates, and working with other partners in the community to reach out to victims and families of victims to do a part of these cases as well,” Williams said. “Because frankly, all folks were abused by this racist system.”