Just over a year ago, newly sworn-in Orleans Parish District Attorney Jason Williams agreed to vacate the convictions of 22 people who were still in prison on non-unanimous jury convictions, allowing them to plead to lesser charges with reduced sentences and, in many cases, go free after years in prison.
The move, taken during a February 2021 court hearing, was intended to signal that Williams was serious about fulfilling one of most ambitious campaign promises: a comprehensive review of split jury convictions from Orleans Parish, vacating some prisoners’ convictions and giving new trials — without throwing up procedural hurdles — to others.
And it was part of a broader message Williams had been delivering for months about the legacy of racism throughout the criminal legal system that he would be inheriting as District Attorney and his commitment to “addressing the sins of the past.”.
Louisiana’s split jury law was rooted in the Jim Crow politics of the late 1800s. State voters repealed the law in a 2018 ballot initiative and the U.S. Supreme Court ruled split verdicts unconstitutional in 2020, but neither was fully retroactive. And by the time Williams took office last year, about 1,500 people — 80 percent of them Black — remained in Louisiana prisons on legally valid non-unanimous convictions.
“Repairing 120 years of injustice is a major step in New Orleans,” Williams said at a press conference outside the courthouse on the day of the February hearing, where he was joined by criminal justice reform advocates, public defenders, and civil rights attorneys.
Since that day, however, the pace of the project appears to have slowed considerably. Emily Maw, chief of the office’s new Civil Rights Division — and former director of the Innocence Project New Orleans — told The Lens in an interview last month that the DA’s office is still committed to reviewing every case. But the office is no longer vacating cases en masse, as it did early last year. And it has abandoned the idea of tackling cases by court section — as it had started out doing, with Section G of Orleans Parish Criminal District Court — instead opting for a more individualized approach.
As of late last month, the office says that it has “resolved in some way” 61 cases involving non-unanimous jury convictions, including the 22 that were vacated in the February 2021 hearing. Three of those were resolved prior to the February cases, meaning that 36 additional cases have since been addressed. The office said it believes that accounts for around 25 percent of cases with proof of a non-unanimous verdict out of New Orleans — though officials say new cases are still being brought to their attention.
The DA’s office did not provide records showing all of the cases that had been resolved, or the final outcomes of those cases, despite multiple requests from The Lens. It is unclear how many of the resolutions resulted in defendants being set free.
“I personally feel that we are doing this at a sustainable — a very thorough pace,” Maw said. “And that we will be able to review in-depth all of them and determine what the most just outcome is and all of those cases.”
In addition to a slowed pace, questions remain about whether or not every case that gets reviewed by the office will result in some form of relief for the defendant. In a letter last June to the legal non-profit Promise of Justice Initiative — which represents people convicted by non-unanimous juries across the state, Maw said that her office would “seek to redress” split-jury cases in which the dissenting jurors’ votes had to do with the “strength of the case” or the “length or mandatory nature” of the sentence — meaning, for instance, a case where a juror perhaps was in favor of a more punitive outcome may not qualify for relief. In the same letter, she said the office reserved the right to utilize procedural bars against a defendant’s application for relief if DA’s office staffers had not had time to review the case prior to a hearing and if a stay would not be granted.
Maw now also says that just because her office reviews someone’s case and determines that it has a qualifying non-unanimous verdict, it doesn’t mean they will necessarily support vacating a conviction. Most of the cases the office has handled thus far have been resolved through agreements with defendants who have agreed to plead guilty to a lesser charge rather than be retried. But Maw said that if there are instances where someone does not agree to a deal, the DA’s office won’t make a commitment to vacating their conviction.
That would likely mean the office filing a procedural objection to their post-conviction relief applications — which Williams once vowed not to do.
Still, some advocates working to free prisoners convicted by split juries credit Williams for taking on a comprehensive, systematic review of split-jury convictions, where other prosecutors have either remained silent on the issue or engaged in what appear to be more limited reviews.
“This is all relative,” said Jamila Johnson with the Promise of Justice Initiative. “And in the relative world of the state as a whole, Orleans appears on a path to meet their commitments to look at all of these cases.”
Individualized review
After the first cases were vacated last year, the DA’s office received some pushback from victims and family members of victims who said they were not given sufficient notice that the people convicted of the crimes they were involved in would be given a deal based on their non-unanimous verdicts.
At a March 2021 resentencing hearing, one victim of a gunshot wound said he supported the person who was convicted of getting out of prison, but called for Williams’ resignation for not letting him know about the move in advance.
Maw said that she felt the office did a “decent job” of reaching out to victims last year. But she said that the office decided to “beef up” its individualized reviews of the cases, hence the decision to drop the court section-by-court section approach. She said that mostly had to do with the need to develop more robust reentry plans for individuals getting out of prison.
The decision to start out with a large chunk of Section G cases, Maw said, was made in response to that section’s infamous history, particularly under longtime Judge Frank Shea, who was famous for rushing through trials, sometimes at the expense of fairness.
“Section G has always been kind of historically a problem section because of that, the various judges that occupied that court,” Maw said. “There were so many non unanimous jury cases in Section G.”
Now, Maw says, even after the initial 22 cases, there have been as many additional split-jury cases out of Section G as there are in other sections.
“They just keep coming out of the woodwork,” Maw said.
But Maw said that the division is now addressing cases based on which ones “are most ready to be resolved.”. That determination is made by taking into consideration number of factors involving both the conviction itself — the reason for the split-jury verdict, the evidence used during prosecution — along with an individual’s prison record and potential re-entry plan.
“And that means more than, you know, ‘I’m going to live with my sister,’” Maw said. “It means have they dealt with all of the issues that may have led them down the road to committing a crime in the first place.”
In addition, the office continues to do outreach and facilitate conversations between people in prison and victims to determine potential resolutions, which Maw said was “profoundly inspiring.”
“I think it’s probably more interaction that some victims or survivors had initially with the criminal legal system,” Maw said. “And I don’t mean interaction like time in court. I mean, how much they were listened to and how much people were able to communicate with the other side about what would be useful to them.”
But Maw said that her division — which has for the last year consisted of two assistant district attorneys and two investigators working on cases — is also addressing other types of cases, such as potential wrongful convictions that do not have split-jury verdicts, excessive sentences, and 10/6 lifer convictions.
“There is an urgency to that project as well,” she said. “So the challenge in doing all these cases is doing them well, and at the same time as addressing other categories of past injustice, and not giving one inappropriate priority over the other. Because they are all problems that need to be addressed.”
‘Best reflects justice’
Williams has said he believes all non-unanimous verdicts are unconstitutional, which is what prompted him to take on the review, promising to waive procedural objections in cases where people convicted by split juries sought relief. And during the hearing in February of last year, when the office agreed to vacate the initial 22 convictions, Maw seemed to suggest that no split-jury verdict would stand — even if that meant the office would have to retry the case.
“These convictions are unconstitutional, and the state has agreed to vacate them,” she said at the time. “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.”
But now, Maw says the office won’t commit to vacating every conviction when defendants won’t agree to take a deal. That typically involves pleading guilty to a lesser offense in exchange for being freed. The decision, she said, would depend on the evidence, and how recent the case was, among other factors.
“I don’t want to hypothesize what might happen if somebody doesn’t agree with what we believe is the resolution,” Maw said. “We will cross that bridge when we come to it, but we haven’t yet.”
She also echoed concerns from prosecutors throughout the state that having to retry those old cases could clog up the court system.
“I think it is wildly impractical and unfair to retry 200 cases, right?” Maw said. “That is not going to get to justice in most of these cases. And so in using our discretion to decide to review these, you’re doing it in a way that leads to the compromise that best reflects justice in each of the cases.”
She said that with each case the office was attempting “to craft a solution that acknowledges the history and the damage the history of the law” while also making sure it is “pragmatic” and “responsible” for both the victims and defendant.
Johnson with PJI said that she didn’t know that the position the DA’s office is now taking is “100 percent inconsistent” with their prior commitments, but said it had been hard to pin them down on anything “concrete.”
“In the meantime, there are people who are coming home,” Johnson said, “and it has not become an insurmountable issue yet.”
She noted that regardless of whether or not the office would independently vacate every conviction, they could soon be forced to by either the Louisiana Supreme Court or the state legislature.
“We are hoping that he will follow his campaign statements and address all of these cases,” Johnson said. “But in the event that there are some they don’t address, we’re hoping that the legislature or the courts will tell them they have to.”
Maw said the office was not taking a position on any legislation mandating that non-unanimous convictions be vacated.
