One proposal to revisit Louisiana’s split jury verdicts is moving forward into the Senate. But advocates and defense attorneys are holding out for other options, because Senate Bill 215 offers little new relief and relies on a system already in place, they say.
In Louisiana, between 800 and 1,600 people still remain incarcerated in cases with unconstitutional verdicts, either by votes of 10-2 or 11-1. Since then, nearly every legislative session brings a new bill trying to address the remaining cases.
Up until eight years ago, Louisiana and Oregon law allowed 12-person juries to render a felony verdict with at least 10 votes, a practice begun during the Jim Crow era to exclude the voice of Black jurors. In every other U.S. state, unanimity was required: with even one dissenting juror, a jury could not convict.
In November 2018, Louisiana voters passed Amendment 2 to abolish non-unanimous jury verdicts.
In April 2020, the U.S. Supreme Court found that split juries unconstitutional, because they violate the Sixth Amendment right to a fair trial. Though the decision barred nonunanimous juries within the U.S. from that point forward, it did not address past, unconstitutional sentences. That work is up to local lawmakers, the court ruled.
On Tuesday, a Louisiana Senate judiciary committee voted 4-3 to advance Senate Bill 215, a proposal to review the convictions made by nonunanimous juries.
The bill, sponsored by Sen. Patrick McMath, a former prosecutor from Covington, would create a five-member panel to review claims from people convicted by split juries and determine whether their cases represent a miscarriage of justice.
People advocating for those still serving unconstitutional sentences expressed concern that the relief offered by the bill wasn’t meaningful enough. “This is a false solution to a real injustice,” said Michael Cahoon, an organizer with the Promise of Justice Initiative.
Sen. Royce Duplessis, one of the votes against the bill, has tried in past years to introduce legislation to address split-jury cases. So his vote against the bill was not an easy objection, he said. But he couldn’t support it because of constitutional concerns and because of a lack of backing from advocates of those serving unconstitutional sentences. “Those who are most impacted by this don’t support it,” he said.
Herman Evans, who spent 37 years imprisoned on a 10-2 verdict, gave voice to that opposition in committee. “Man, this bill ain’t gonna be right. It ain’t gonna do nothing,” Evans said.
The group Voters Organized to Educate, which includes many impacted people, also does not support Senate Bill 215. Instead, VOTE supports two other pieces of legislation, House Bill 219 and House Bill 532, said deputy director Bruce Reilly. Neither measure has yet been heard in the House judiciary committee.
HB 219 gives people with unconstitutional verdicts a chance at a sentencing hearing. It’s considered a compromise bill. “HB 219 keeps the guilty verdict, but allows for re-sentencing hearings — or a new trial if the D.A. chooses,” said Bruce Reilly of VOTE, who called it “a reasonable bill for the legislature and people of all parties to support.”
The second bill, HB 532, is a constitutional amendment for Louisiana voters, who could cast ballots to give everyone with a proven non-unanimous verdict an opportunity for a new trial.
Proponents for those who remain incarcerated on unjust sentences have long maintained that any legislative process must consider that some people are innocent or should have been convicted on lesser charges. But some prosecutors say that opens the door too far.
The legislation is slated for possible passage through the full Senate on Monday.
Bill creates a panel to review cases
The bill’s proponents say that the legislation creates a structured way to address a narrow group of cases. “This is a deliberate approach to try to assess the claims,” said Zach Daniels, executive director of the Louisiana District Attorneys Association, which supports the approach.
Prosecutors and advocates of those still incarcerated both saw practical challenges to the cases, including lost evidence, unavailable witnesses and decades-old records.
But their solutions are different: prosecutors argue that the path forward should rely on available records. Retrying as many as 1,600 cases is “functionally impossible,” Daniels said. Advocates believe that other proof should be allowed as well, preferably with a hearing.
The bill creates a panel made up of three retired judges, a retired prosecutor and a retired public defender. People convicted by nonunanimous juries would have one year to apply, and the panel would review cases using existing court records.
Some people familiar with nonunanimous jury convictions believe that the review must be comprehensive. Within split-jury cases, they say, there is a higher level of innocence or over-conviction, because the case wasn’t strong enough to convince all 12 jurors to convict on a prevailing charge.
Others do not agree with that assessment “These do not represent an injustice,” Daniels said. “Many of these contain strong evidence and are valid convictions where the prosecutor played by the rules at the time.”
Advocates, including lawyers and organizers from the Promise of Justice Initiative and Voters Organized to Educate, told the committee that the bill has far too many shortcomings. It relies on court records, does not allow new evidence or misconduct claims, and makes relief difficult to obtain by requiring unanimous agreement from the panel.
The measure also limits what the panel can do. Even if members agree that a conviction was unjust, they cannot order someone’s release. Any relief would likely go through the governor, leaving the final decision to a single person, advocates told lawmakers during committee testimony.
“That’s not a compromise, y’all – this is simply not it,” said Sarah Gozalo of Promise of Justice, who also was critical of the bill’s reliance on clemency. “Every single person can already apply for clemency under Title 22, Article 5,” she said.
Plus, it may not pass legal muster. “Right now, this bill is unconstitutional,” said criminal defense attorney Erica Navalance, a senior staff attorney at Promise of Justice who handles appellate and post-conviction work. “You cannot create a panel that gives parole to people who have a sentence that was imposed without parole, without going through the courts,” she said.
Overall, critics of the legislation said that the bill created a system that would look like a case review in appearance but was unlikely to deliver meaningful results.
“It might be creating a process, but it is not creating relief,” said Will Snowden, director of The Juror Project in New Orleans.
