When they meet this Friday in conference to discuss which cases to accept for review, the justices of the United States Supreme Court will have yet another opportunity to fix one of the most obvious and destructive flaws in Louisiana's broken justice system: the use of non-unanimous jury verdicts even in murder cases that can result in sentences of life in prison for convicted defendants. No fewer than six cases raising this Sixth Amendment issue are before the Court this week, all teed up and ready to be resolved.
Prosecutors love the non-unanimous jury rule because it increases the chances of conviction—you don't have to convince every juror of the defendant's guilt beyond a reasonable doubt, you just have to get 10 or 11 of 12. Judges love the rule because it expedites deliberations and gets more cases off the docket faster. But for criminal defendants, and especially black criminal defendants in Louisiana, the rule cleaves them even further from defendants in the rest of the country whose liberty may be saved by a holdout juror or two.
Unanimity is required in all federal criminal cases. And only two states, Oregon and Louisiana, have a form of the non-unanimous jury rule. Oregon requires a unanimous verdict in first-degree murder cases, an 11-1 verdict in all other murder cases, and of course doesn't have the history of racial disparity that has marked Louisiana law for centuries. So, alone in the nation, in a state notorious for racial disparities in its justice systems, Louisiana allows a defendant to be convicted and sentenced to life in prison without parole based upon a 10-2 vote.
What does this rule really do? It increases by a significant degree the odds of a conviction following trial. But it also means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit. That precise scenario has happened in some cases that ultimately resulted in wrongful convictions. The Supreme Court has the opportunity to finally end this practice, which is unjust both in its intent and its effect.
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The text of the Sixth Amendment refers only to the right to "an impartial jury"—there is no explicit right to a unanimous jury. But the Supreme Court has long recognized that such a right exists in federal criminal trials. The Court also has consistently incorporated various Sixth Amendment's rights to the states via the Fourteenth Amendment with one glaring exception: the justices so far, despite repeated requests to do so, have refused to require unanimity in state criminal trials.
The basis for this dichotomy—this unequal application of constitutional standards with a person's liberty on the line—is a feeble ruling that now should be put to a merciful death. Oregon and Louisiana base the defense of their non-unanimous jury rules upon Apodaca v. Oregon, a 1972 case that generated a rare 4-1-4 decision. The "1" was Justice Lewis Powell, who tried to be all things to all sides in that case and ended up creating precedent that has allowed Louisiana and Oregon to become outliers under law.
In Apodoca, eight justices agreed that the Sixth Amendment applied identically to the federal and state criminal trials. Four of the eight concluded that there was no right to a unanimous jury either in federal or state prosecutions. Four more of the eight came to the precisely opposite conclusion—that both state and federal criminal cases had to include unanimous juries. Justice Powell split the baby—unanimous for federal criminal trials, non-unanimous for state criminal trials—without spending great energy explaining why.
The Court has long been aware of the cognitive dissonance of the Apodaca ruling. And in a recent line of cases—like Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker—the Court has expressly endorsed the vitality of a unanimous jury's function in the criminal justice system. These rulings are inconsistent with Justice Powell's concurrence in Apodaca and with what's happening on the ground in Louisiana and Oregon. How can we exalt the jury on one hand and discount the votes of jurors on the other?
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How is this rule employed in Louisiana? In a brief filed in Jackson v. Louisiana, one of the six cases before the justices Friday, the Innocence Project New Orleans shared the example of the Travis Hayes. He was convicted of being the getaway driver for a man who murdered a store owner. Ten jurors judged him guilty. Two jurors, including the lone black juror, dissented. Hayes was convicted anyway but it was the dissenters who were right. Hayes subsequently was exonerated after new evidence linked another man to the crime.
But what is really happening? The non-unanimous jury rule permits prosecutors to allow unconstitutional racial disparity to slink back into jury selection. It enables them to put just enough minority jurors on a particular jury to avoid violations of the Supreme Court's rule in Batson v. Kentucky, but not enough to prevent the possible conviction of the defendant by a juror or jurors who might—justifiably or notbe more skeptical of the state's evidence and witnesses or more willing to believe the defendant's story.
Not every prosecutor, of course, would employ such cynical tactics to ensure success. Most probably don't and never would. But enough do, or did anyway, to have provoked this startling language in 1989 from the Louisiana Supreme Court, certainly no bastion of succor for black litigants or criminal defendants over the years. The justices there described the tactical and strategic abuse of the non-unanimous jury rule in a case involving racially discriminatory peremptory challenges:
The record in this case strongly suggests that the prosecutor, already frustrated in defendant's first trial by a hung jury which included three blacks, pursued a strategy in the second trial of limiting the number of blacks on the jury to two, thus making a conviction possible even if all of the blacks on the jury voted according to racial bias. This pattern of striking all black jurors (except two) continued in the face of mounting pressure by the trial court to select a jury more representative of the black population of the parish.
As Tulane University Professor Emeritus of History Lawrence Powell tells us, Louisiana's long-ago "adoption of non-unanimous jury verdicts was substantially motivated by racial ill will" that "saturated the proceedings of the Constitutional Convention of 1898 through and through, hardly surprising since it had been called for expressly racist purposes."
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Here is the part where I typically would provide you with the state's response to this analysis. But Louisiana has not even bothered to file a brief opposing Ortiz Jackson's request to have the justices review his case. Nor has the state filed a response in any of the five other cases the justices may consider Friday on this topic. To the state, the law is so settled, and the claims of these other defendants so unfounded, there is no need to spend the effort to remind the Supreme Court that this is so.
Here is the link to a robust defense of the Louisiana rule, from a 2012 court filing in a case styled Miller v. Louisiana. There, Louisiana told the justices in Washington that "stare decisis and the state’s interest in its administration of criminal justice compel the conclusion" that you stay out of their business. The essence of Louisiana's response in all these cases—the law is why it is because it iscan be found here, in a brief filed by state attorneys in the Jackson case back in 2012. In it, Louisiana dispatched with the argument in a single small paragraph:
However, non-unanimous verdicts by a 12-person jury were held to be constitutional by the United States and Supreme Court almost 40 years ago. See Apodaca v. Oregon. The Court has recently declined to revisit that decision. See Barbour v. Louisiana (2011). Furthermore, Apodaca's application in this state has been affirmed by the Louisiana Supreme Court. See State v. Bertrand (La. 2009). (citations omitted by me).
One year earlier, however, in another case challenging the state's jury system—one that did sufficiently rouse state attorneys enough to see them file a brief with the justices in Washington—Louisiana made this dubious argument in support of its non-unanimous jury rule:
[I]t is difficult to perceive a qualitative difference between a jury composed of ten returning a unanimous verdict and a jury composed of twelve returning a majority verdict of ten. In either case, the defendant has had the benefit of a trial by a jury of his peers, affording him the interposition of the commonsense judgment of a group of laymen. More-over, the burden placed upon the State in achieving such a conviction is identical—it must convince ten citizens of the accused’s guilt beyond a reasonable doubt.
But it is not at all "difficult to perceive a qualitative difference" between a smaller jury that renders a unanimous verdict and a larger one that does not. In the first situation, no juror has voted to acquit and there is no internal question about whether the state has satisfied its burden of proving its case beyond a reasonable doubt. In the second situation, the votes of dissenting jurors essentially are ignored and there is a patent conflict within the jury about whether the state has met its burden of proof.
Meanwhile, in 2010, in a case styled Barbour v. Louisiana, state lawyers urged the justices not to overturn Apodaca or to rely upon those other jury cases— Apprendi, Blakely and Booker—to restrict the scope of the non-unanimous jury rule. "The Court has never had the occasion to examine the substance of deliberations themselves to determine whether they were sufficiently through to protect the constitutional rights of a defendant," Louisiana argued. The jury's work is sacrosanct, the state says, unless you are a juror voting to acquit.
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There are reasonable arguments to be made for streamlining the deliberative process for jurors and litigants. There are valid reasons why a non-unanimous jury verdict might work in civil cases. And beyond the cases identified by the Innocence Project, there is no empirical proof that Louisiana's non-unanimous jury rule is the sole cause of the state's egregious record of wrongful convictions —any more so than, say, the state's failure to provide adequate lawyers to indigent defendants or the notoriously lax standards of its appellate courts.
But surely, by reducing deliberations to a mathematical equation, by endorsing convictions even in those cases that have raised reasonable doubt in the jury room, the jury verdict rule has not helped ensure a fair balance between the state's desire to convict and the individual's right to be free from wrongful conviction. In unanimity regimes, jury votes that are 10-2 in favor to convict result in guilty verdicts only 64.7 percent of the time, according to Dennis Devine, an expert cited by defense attorneys in one of their briefs to the Supreme Court.
Louisiana is terribly wrong to defend a law that was born of white supremacy. And the state's effort now to obscure this ugly past, by claiming that a 1973 amendment to the law somehow purged it of its racist origins, is downright odious. But Louisiana is right about at least one thing—the justices have consistently, term after term, refused the opportunity to kill it by overturning Apodoca. With lawmakers in Georgia contemplating similar laws, and advocates in Florida pushing for the same, that time has come.
These laws in Oregon and Louisiana deprive criminal defendants in the most serious cases of a core right they have in federal court—the right to be spared from conviction by a lone juror convinced of the righteousness or his or her views. And, just as important, these laws deprive jurors of the right to have their dissenting votes count as a bulwark against unreliable evidence, prosecutorial misconduct, or anything else that creates reasonable doubt. The Court now has a chance to right these wrongs—starting, on Friday, by accepting at least one of these cases for review.