The Louisiana Supreme Court. (Nicholas Chrastil/The Lens)

In a first for the state, a Louisiana state appeals court ruled on Wednesday that a United States Supreme Court decision ruling non-unanimous jury verdicts unconstitutional should apply to all past convictions, including in cases where defendants have exhausted the normal state appeals process. Those were not included in the U.S. Supreme Court ruling. 

But on the same day, another appeals court in a different part of the state ruled the opposite, reversing a lower court’s ruling that found the 2020 Supreme Court decision Ramos v. Louisiana fully retroactive.

Advocates for inmates in prison on split verdicts hope that the divergent rulings on Wednesday will prompt the Louisiana Supreme Court to weigh in on the issue. 

Hardell Ward, an attorney with the Promise of Justice Initiative, argued for the defendants in both cases. He said that he thought the “circuit split” would likely prompt the Louisiana Supreme Court to weigh in to create continuity throughout the state. 

“In the state of Louisiana, we have two circuits saying two different things in the same issue,” Ward said. “I suspect the [Louisiana] Supreme Court will now take up the issue at some point. But again, it’s their prerogative — there is no requirement.” 

Until that occurs, however, people still in prison on non-unanimous verdicts face an uncertain future. 

“To date, the Louisiana Supreme Court has not taken cases, even though this issue impacts about 1,500 men and women in Louisiana’s prisons and their families,” Jamila Johnson, Deputy Director at Promise of Justice Initiative, said in a statement posted on their website Thursday morning. “Each day our office is flooded with questions about why the Court hasn’t acted.”

For more than 100 years, Louisiana law allowed people to be sent to prison if as many as two of 12 jurors voted to acquit. It was one of only two states, along with Oregon, to allow split-jury convictions. For years, defendants convicted by 10-2 or 11-1 jury votes tried seeking post-conviction relief or new trials on the basis that the law should be ruled unconstitutional, with no success.

But in 2018, The Advocate published a Pulitzer-prize winning series that detailed the racist origins of the law — codified into the state constitution in 1898 as part of a constitutional convention meant to “establish the supremacy of the white race.” Legal scholars believe the law was intended to nullify the votes of Black jurors in cases against Black defendants. 


A ‘Jim Crow jury’ prisoner fights for freedom

Brandon Jackson is one of more than 1,500 people still incarcerated in Louisiana on non-unanimous verdicts, though the United States Supreme Court ruled split verdicts unconstitutional last year.

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The Advocate series also showed how that legacy appeared to manifest in the modern day. Black defendants, they found, were still more likely to be convicted by a non-unanimous jury than white defendants, and Black jurors were more likely to cast dissenting votes in jury trials.

The issue got the state legislature’s attention, and in 2018, lawmakers approved a ballot amendment asking residents if the split-jury law should be repealed. Voters in the state overwhelmingly approved it in the November 2018 election. 

But the new law only applied to cases that were initiated in 2019 or later. Then in 2020, the U.S. Supreme Court’s decision in Ramos extended the unanimous-jury requirement to some already-decided cases, but the justices did not apply full retroactivity, leaving out cases that had not been through the appeals process. In a subsequent decision, in Edwards v. Vannoy, the court declined to further extend the Ramos ruling, but the decision left open the possibility that states — through the courts or legislation — could nullify those old verdicts. 

As a result, three years after the law was repealed and more than a year after split-jury verdicts were found unconstitutional, there are still around 1,500 people in Louisiana based on non-unanimous jury convictions. Many of them are now fighting their convictions using the Ramos ruling as a legal basis. Eighty percent of them are Black. 

Split ruling

The cases decided Wednesday — in the Louisiana 4th Circuit Court of Appeal in New Orleans and the Third Circuit Court of Appeal in Lake Charles — involved Julio Melendez, who was convicted of second degree murder in 1987, and David Nelson, who was convicted of manslaughter in 2012. Both had non-unanimous verdicts.

Citing the law’s origins, the Fourth Circuit — which covers Orleans, St. Bernard, and Plaquemines Parishes — determined that despite the fact that the United States Supreme Court was not mandating it, “fundamental fairness” required that Melendez receive a new trial. 

“Considering the historically racist motivations behind the adoption of the non-unanimous jury verdict practice, this Court finds the practice, from its inception, was not steeped in fairness,” Judge Regina Bartholomew-Woods wrote in the courts decision. “Therefore, in the interest of justice and fundamental fairness, we hereby grant the writ and reverse the judgment of the district court.”

Ward said it was unlikely Melendez, who was sentenced to life in prison without the possibility of parole, would walk out of prison anytime soon. He said that prosecutors could request a stay of the ruling pending an appeal to the Louisiana Supreme Court, and that in the event that his conviction is tossed out, could decide to charge him again. In that case, Melendez may be held in jail as he awaits a new trial. 

Meanwhile, the Third Circuit in Lake Charles reversed a Calcasieu Parish judge’s ruling that Nelson, who was found guilty of manslaughter in 2012 and sentenced to 30 years in prison, was entitled to a new trial. They determined that the district judge erred in his reasoning when he departed from the United States Supreme Court’s legal analysis of when a decision should be applied retroactively. 

For the time being, Ward said the rulings create a situation where two jurisdictions have two distinct interpretations of whether or not people still in prison on split-jury verdicts are entitled to a new trial.

Defendants who are in the Fourth Circuit’s jurisdiction, he said, should now be able to make successful claims based on their non-unanimous verdicts. 

“Their rule of law says that Ramos is retroactive, and we are able to seek relief,” Ward said. “And we’re gonna explore ways of doing that sooner rather than later.” 

Meanwhile, any relief for defendants in the Third Circuit’s jurisdiction, will have to ultimately come from the Louisiana Supreme Court. 

While Ward said he disagreed with the Third Circuit’s analysis of the law, he was glad the judges took the issue head on. Many judges throughout the state have been declining to rule at all on the petitions prior to the Louisiana Supreme Court weigh in. 

“They at least did some exploration,” Ward said. 

Attempts to change state law to mandate new trials for people still in prison on split-jury verdicts have so far been unsuccessful. 

But some locally elected district attorneys have made the decision to review those cases independently. In New Orleans, DA Jason Williams has said he will review all non-unanimous convictions that have come out of his office. In Shreveport, DA James Stewart has indicated that he will do a more limited review to determine which cases may be able to be resolved through plea agreements.

Ward said he hoped the split-circuit decision would encourage other district attorneys to start independently reviewing cases in their jurisdictions as well. 

“I’m hoping that this circuit split will cause more DAs to consider reviewing those cases and seeing which cases can be resolved,” Ward said. “There are many cases where there are clear issues of evidence…..There are plenty of cases where these can be quickly resolved in a way that is fair for all parties.” 

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...