Louisiana Prosecutors Push To Retain Nonunanimous Jury Verdicts
In 2018, the state’s voters approved a constitutional amendment that requires unanimous jury verdicts in felony cases for crimes committed on or after Jan. 1, 2019. Now, the Supreme Court is considering the constitutionality of the nonunanimity rule—with prosecutors arguing that the U.S. Constitution does not require unanimous jury verdicts in criminal cases.
In November 2014, the body of Trinece Fedison was found in a trash can in a wooded area near her New Orleans home. Fedison had been stabbed to death.
New Orleans Police Department detectives quickly identified her neighbor, Evangelisto Ramos, as a potential suspect because he had a romantic relationship with Fedison, and witnesses said they saw a Latinx man with her the day before her body was discovered.
Fedison’s nephew—who was first interviewed by Detective Nicholas Williams, a friend of Fedison’s family—said “a Spanish guy had to do it.”
Investigators found Ramos’s DNA on Fedison’s body. He could also not be ruled out as a contributor to DNA found on the handles of the trash can. DNA from at least two other men were also found on Fedison’s body, although it was poor quality and could not be used to identify a match.
Ramos maintained his innocence and told police his DNA was on the trash can because he had recently used it to take out the garbage. Ramos also said that the night before Fedison’s body was found, she got into a vehicle with several men and drove off. He told police this was the last time he saw her.
Detectives were skeptical of Ramos’s account and in May 2015, he was indicted by the Orleans Parish district attorney’s office on one count of second-degree murder.
After a two-day trial in June 2016, 10 of 12 jurors voted to convict him. In Louisiana, that was enough to send Ramos to prison for life.
In 2018, Louisiana voters overwhelmingly approved Amendment 2, which requires the unanimous agreement of jurors to convict people charged with felonies. However, the measure applies only to crimes committed on or after Jan. 1, 2019. Though the Louisiana District Attorneys Association took no position on Amendment 2, prosecutors across the state, including Orleans Parish DA Leon Cannizzaro, continue to seek convictions through nonunanimous verdicts for crimes that occurred before the change in the law.
On Oct. 7, Ramos’s case went before the U.S. Supreme Court to decide if the practice of convicting people through nonunanimous juries violates the Sixth Amendment of the Constitution. In 1972, the Court ruled in Apodaca v. Oregon that the Sixth Amendment requires unanimous juries but that the right applies only to federal cases.
Cannizzaro and Louisiana Solicitor General Elizabeth Murrill oppose Ramos’s position.
Murrill argued to the justices that no one is entitled to a unanimous jury in criminal cases.
In a brief with the court signed by Cannizzaro, the state of Louisiana wrote that a ruling against nonunanimous juries would create “instability and uncertainty” in the state and produce a “flood” of petitions from people convicted by nonunanimous juries.
Similarly, Murrill told the justices that overturning nonunanimous verdicts could lead to appeals by all of the approximately 32,000 people in Louisiana’s prisons because they were either convicted by nonunanimous juries or pleaded guilty knowing they would have to face a possible nonunanimous jury verdict.
“You say we should worry about the 32,000 people imprisoned,” Justice Neil Gorsuch said during oral arguments. “One might wonder whether we should worry about their interests under the Sixth Amendment as well. And then I can’t help but wonder, well, should we forever ensconce an incorrect view of the United States Constitution for perpetuity, for all states and all people, denying them a right that we believe was originally given to them—because of 32,000 criminal convictions in Louisiana?”
Under questioning by Justice Stephen Breyer, Murrill said she could not provide even an estimate of how many people in Louisiana were convicted through a nonunanimous verdict.
“We have a system where people in power, [where] prosecutors say ‘I don’t have to convince everybody. I just have to convince 10,’” said Calvin Duncan of the Promise of Justice Initiative, a New Orleans-based criminal justice policy and advocacy nonprofit that represents Ramos.
Duncan spent more than 28 years in prison in Louisiana wrongfully convicted of murder. During his incarceration, he taught himself the law and became the head of the legal programs department at the Louisiana State Penitentiary where he helped hundreds of people seek post-conviction relief.
“I have friends that were in prison with me who were innocent whose juries were 10 to two,” Duncan said. “If it had not been 10 to two, they wouldn’t have served 30 years in prison. Prosecutors should never have the ability to manipulate the system to that degree.”
Like Gorsuch, Duncan argues that the court should focus on how nonunanimous juries are unfair and should be barred by the Constitution instead of concerns about the number of cases that could be appealed as a result of a decision in favor of Ramos.
Duncan also said Murrill and Cannizzaro drastically overstated the number of cases that would be affected by such a decision. “She’s just wrong,” Duncan said. “That’s just a scare tactic.”
Duncan said a decision in favor of unanimity in Ramos’s case would only pertain to about 30 to 40 people who, like Ramos, are on direct appeal from their convictions. Any decision on who else might benefit from unanimous verdicts would have to be argued in the future, Duncan said.
In October 2018, just before Louisiana voters rejected nonunanimous jury verdicts, Sabine Parish District Judge Stephen Beasley ruled in Louisiana v. Melvin Cartez Maxie that non-unanimous jury verdicts were unconstitutional. Beasley wrote that the practice has a long racist and xenophobic history and is used to suppress the voices of Black and other non-white jurors. Indeed, Louisiana introduced nonunanimous juries in 1898 as part of a constitutional convention meant to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” Split jury verdicts were one of several racist measures passed after the Civil War, the abolition of slavery, and the enfranchisement of Black citizens. In 1934, Oregon allowed nonunanimous jury verdicts after an influx of immigrants from southern and western Europe in the state. It is now the only state that continues the practice.
Beasley also cited an analysis of jury verdicts by the Louisiana newspaper The Advocate, as well as expert testimony about racially disparate impact of nonunanimous juries from Thomas Aiello, an associate professor of history at Valdosta State University in Georgia, and Thomas Frampton, a lecturer in law at Harvard University. “It is clear that non-unanimous jury verdicts were motivated by racial animus,” Beasley wrote.
Data from The Advocate revealed that Black people were struck from potential jury pools more often than whites and that Black jurors accounted for more than half of all the dissenting votes in nonunanimous verdicts.
Beasley wrote that even though the state again adopted nonunanimous juries in 1973 during a constitutional convention without an overtly racist animus, that alone “did not cleanse the taint of invidious racial discrimination.”
In a brief with the U.S. Supreme Court, however, advocates for the state of Louisiana including DA Cannizzaro wrote that “there is no convincing evidence demonstrating that the 1898 Constitution’s specific authorization of non-unanimous jury verdicts was based on racism rather than judicial efficiency.” Cannizzaro also argued that advocates for nonunanimous jury verdicts were concerned that unanimity would produce hung juries. But Jacinta Gau, associate professor of criminal justice at the University of Central Florida, said there is little evidence that unanimous juries lead to a substantial increase in hung juries.
Unanimous juries have existed “from the beginning of time,” Duncan said. “Even Louisiana did from the beginning of time until Blacks had to be put on the jury.”
Ramos’s case is awaiting a decision by the Supreme Court justices. An opinion is expected by late June or early July, the end of the court’s current term. But a decision could come sooner—as early as December—if the justices unanimously agree on the case.
Duncan said he hoped the elimination of nonunanimous juries could create a fairer criminal legal system.
He said that a U.S. Supreme Court opinion in favor of unanimity would not automatically allow for the release of release of people convicted by nonunanimous juries, including Ramos, but would instead provide an opportunity for a new trial where all the voices are heard.
“Even a 12-member [unanimous] jury can convict innocent people,” Duncan said. “[But when] that one person that’s on that jury says, ‘I think that person is innocent,’ that vote should count.”