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.