Editor’s Note: E. King Alexander, Jr., the author of this post, is a Louisiana, California, and Texas attorney engaged in indigent defense in Calcasieu Parish, Louisiana. He currently serves, with Julie Hayes Kilborn, as Co-Chair of the Amicus Committee of LACDL. Before dedicating himself to indigent defense, King focused on civil litigation including intellectual properties and was a longtime professional musician.
But for the celebrity of the defendant, the prosecution of 38-year-old Corey Miller in Jefferson Parish, Louisiana for second-degree murder would have been a fairly typical one. The defendant grew up in the Calliope (now B. W. Cooper) Housing Project in New Orleans. The fact that he is a globally-known rap recording artist, uncle of kiddie rapper Lil Romeo, and younger brother of Master P*, founder of No Limit Records, whom some readers may know best as the worst-ever hoofer on television’s Dancing With the Stars, complicated matters worse. The icing on the cake was the fact that the defendant’s professional rapper name was, until 2005, “C-Murder.” The media have refused to accept his change of stage moniker to “C-Miller”. At least one of his prospective jurors last month admitted that the label “C-Murder” formed a part of his preconception of the case. For the other, less-candid panelists, the unfortunate “gangsta” handle remained, according to Paul Purpura of the Times-Picayune, “the elephant in the room.”
The trial concerned the death by gunshot wound, when Miller was 31, of 16-year-old Steve Thomas in a Louisiana nightclub, the now-closed Platinum Room in Harvey, one of the levee-side communities on the west bank of the Mississippi River in Jefferson Parish. That is the same suburban jurisdiction that sent white nationalist David Duke to the Louisiana Legislature in 1989, setting him up for later, unsuccessful runs for the U.S. Senate and for governor of the state. The venue, Louisiana’s 24th Judicial District, is co-extensive with the parish, and is reputed to be the most political judicial district in the state. Recent years have seen more than one of its judges trade the bench for felon status in corruption cases from fixing the child custody case of a wealthy contributor to taking kickbacks from a bail surety company in exchange for lowering bonds.
Last month’s trial was not the first in this case. A 2003 trial resulted in a unanimous verdict of guilty of second-degree murder. The defense followed with a new trial motion alleging the prosecution’s failure to disclose pertinent background information on three prosecution witnesses. Judge Martha Sassone agreed and granted the motion, but her decision’s vindication on review did not prevent her subsequent political defeat in a re-election bid in which the ruling was made a prominent issue. The shooting occurred on January 12, 2002, six days into the festive Mardi Gras carnival season which officially begins on Twelfth Night (January 6) of each year. Amid questions of what caused the altercation, described as Thomas being beaten by “a throng of men,” and how the juvenile victim came to be in a nightclub where the legal age was twenty-one, there was conflicting testimony, including one witness who would claim that he and not Miller had been the shooter.
Miller himself was not destined to take the stand in his own defense. Weighing heavily in that decision would be the fact that Miller as of May 27, 2009 stood convicted of two counts of attempted second-degree murder stemming from an incident on August 14, 2001 at Club Raggs in Baton Rouge when Miller objected to being searched by a bouncer. He was seen on surveillance video drawing a semi-automatic handgun and trying to fire at the bouncer and the club owner when the gun jammed. Some said the whole event was a publicity stunt. The club owner filed a civil suit for money. Moreover, an investigator lost a bullet thought to have been ejected from the gun. All of this, plus the passage of much time, resulted in an agreement for a double no-contest plea, with recommended ten-year sentence, after it appeared that Miller would already have served nearly all of that time while on house arrest awaiting last month’s (second) Jefferson Parish trial. In the interim he had recorded a new album and been allowed to promote it, but with the Baton Rouge convictions available to Jefferson Parish prosecutors for his impeachment, Miller’s testimony would not be heard at the Gretna courthouse. If he were convicted of second-degree murder as charged, there could be only one sentence: life in prison at hard labor, without benefit of probation, parole, or suspension of sentence. An elder corrections officer who guides special tours at the Louisiana State Penitentiary at Angola is candid with visitors when he tells them, “The system needs reform. There are men here, who will never get out, who are no threat to society.” But for now, in Louisiana, “life means life.”
The previously-withheld prosecution witness backgrounds may have made a difference. In any event, the verdicts delivered by the jury August 11 in Miller’s second Jefferson Parish trial were not unanimous, but rather 10-2. Deliberations did not go easily. According to reports, the jurors were initially locked 9-3. In the second day, jurors sent a note to Judge Hans Liljeberg complaining that one juror alternated between quoting the Bible and sleeping. But that same afternoon, the jury came back with a 10-2 verdict of guilty of second-degree murder. But Judge Liljeberg sent them back. He warned that the verdict may be tainted, because one juror had written on her polling slip that she voted guilty “under duress, to get the hell out of here.” Three jurors, including the foreman, the note-writer, and a twenty-year-old female student, were seen weeping in the courtroom. This time they were ordered to vote their respective consciences. Another guilty of second-degree murder verdict came back about three hours later. It was also 10-2.
For well over a week, everyone thought that was the end of it, except for the appeals. Then juror Mary Jacob came forward, telling the Times-Picayune that she had changed her vote to guilty after witnessing the emotional breakdown of a twenty-year-old female student juror whom she believed had been pressured by other jurors to vote guilty. “This thing had to come to an end for this girl’s health, her sanity,” Jacob told the Times-Picayune. She said, “I was more worried about this little girl than I was about Corey Miller.” Jacob added that she still believed the prosecutors had not proved their case “beyond a reasonable doubt.” These are the revelations that prompted Louisiana NAACP President Ernest Johnson to ask Louisiana Supreme Court Chief Justice Catherine “Kitty” Kimball to investigate the jury deliberations, a move that legal experts say would be improper until the appeals have run their course and the case has entered the post-conviction relief phase.
Some reading this may be asking, “Wait a minute– doesn’t a jury have to be unanimous in order to reach a verdict?” The answer in forty-eight states, the District of Columbia, all the federal territories, all the federal courts in every state, and at traditional common law, is “yes.” A final 10-2 vote in all of these other places and courts would be a hung jury, and a mistrial. And so would a vote of 11-1 be a hung jury, and a mistrial. It is not double jeopardy– the case could be tried again, or in most second-degree murder cases, the jury might agree to vote unanimously on what is called a responsive verdict, for a lesser-and-included offense, such as manslaughter or negligent homicide.
But not in two states: Louisiana and Oregon. Those states have enacted laws that allow the “majority verdict”: ten out of twelve is enough to convict, or to acquit. Practically speaking, it results in far more additional convictions than acquittals. Notwithstanding that the Constitution’s Drafters undoubtedly understood conviction by a jury of one’s peers to be twelve unanimous votes, the Oregon version was upheld by the Berger U.S. Supreme Court in 1972, in a 4-1-4 plurality opinion called Apodaca v. Oregon. Ever since that unfortunate decision, in which the plurality concluded that there is “no functional difference” between unanimous and majority verdicts, so that they are permitted under the federal Sixth and Fourteenth Amendments, disappointed legal scholars and the defense bars of both states have worked to see it overturned. One of them is Australia native Richard Bourke, now director of the Louisiana Capital Assistance Center in New Orleans. Bourke is one of those extraordinary international legal talents who, like renowned English lawyer Clive Stafford-Smith, was drawn to Louisiana precisely because it (still) has the death penalty. When he applied himself to delving into the past of Louisiana’s majority verdict law, Bourke struck what ought to have been pay dirt: blatantly racist origins, meant to deliver patently racial effects. He found this in the chair statements, floor speeches, and ultimate enactments of the Louisiana Constitutional Convention of 1898 as it set out to rework the legal schemes of Louisiana after Reconstruction for the Jim Crow era.
The fruits of Bourke’s research have found their way with all blessings into two Louisiana Association of Criminal Defense Lawyers (LACDL) amicus curia briefs in support of petitions for certiorari to the U.S. Supreme Court. Both briefs are available in full . The first petition, Derrick Todd Lee v. Louisiana, was denied by the high court on October 6 of last year. It may be a case of hard facts making hard law, or in this case no law, since this is the same person widely known in the press as “the South Louisiana Serial Killer.” On one of his charges Lee was convicted only 10-2. The second petition was filed March 3 of this year in Scott David Bowen v. Oregon, supported this time by an amicus curia brief submitted jointly on May 28 by the Charles Hamilton Houston Institute for Race and Justice, the National Association of Criminal Defense Lawyers (NACDL), and the LACDL. Julie Hayes Kilborn, Amicus Committee Co-chair of the LACDL, appears on both briefs. The extremes of purposeful racism found in the historical Louisiana materials must be read to be believed, therefore the entire pertinent section of the Bowen brief, titled “The Use of Non-Unanimous Juries in Louisiana has an Ignoble Past,” is set forth here:
Louisiana’s 1898 Constitution, like the Alabama Constitution of 1901 previously examined by the Court, “was part of a movement that swept the post-Reconstruction South to disenfranchise blacks.” Hunter v. Underwood, 471 U.S. 222, 229 (1985). In his opening address at the 1898 Louisiana Constitutional convention – the same convention that adopted various Jim Crow provisions specifically intended to limit African American participation in the democratic process and to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana” – the Convention President, Kruttscchnitt, captured the tone:
“I am called upon to preside over what is little more than a family meeting of the Democratic party of the State of Louisiana. We know that this convention has been called together by the people of the State to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics.”
Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, 8-9 (1898) [hereinafter “Journal”]. When discussing the provisions adopted to prevent African American suffrage, a like-minded delegate explained:
“[T]he Supreme Court of the United States in the Wilson case, referring to that, said that they had swept the field of expedients, but they were permissible expedients, and that is what we have done in order to keep the negro from exercising the suffrage. What care I whether the test we have put be a new one or an old one? What care I whether it be more or less ridiculous or not? Doesn’t it meet the case? Doesn’t it let the white man vote, and doesn’t it stop the negro from voting, and isn’t that what we came here for?” (Applause)
Constitutional Convention of the State of Louisiana, supra, at 380. Closing the Convention, Hon. Thomas J. Semmes stated that the “mission” of the delegates had been “to establish the supremacy of the white race in this state.” Id. at 374. In his closing remarks, President Kruttseehnitt bemoaned that the delegates had been constrained by the Fifteenth Amendment such that they could not provide what they would have wished: “universal white manhood suffrage and the exclusion from the suffrage of every man with a trace of African blood in his veins.” Id. at 380. He went on to proclaim:
“I say to you, that we can appeal to the conscience of the nation, both judicial and legislative and I don’t believe that they will take the responsibility of striking down the system that we have reared in order to protect the purity of the ballot box and to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”
Id. at 381.
This racist voice from the centennial past has thus far been proved accurate: neither court nor legislature has taken the responsibility of striking down this patently and intentionally racially discriminatory law. The historical portion of the Bowen amicus brief continues, saying, “The 1898 Convention substantially diminished the Sixth Amendment jury trial guarantee, and through non-unanimity rules, the elimination of misdemeanor juries, and the reduction of jury size for lesser felonies were said by their proponents to be driven by a desire to reduce costs, commentators have directly linked the diminution of the jury trial right to the general effort “to consolidate Democratic power in the hands of the ‘right people,’ thereby bypassing the poorer sorts, just as the suffrage provision did.” W. Billings & E. Haas, In Search of Fundamental Law: Louisiana’s Constitutions, 1812-1874, The Center for Louisiana Studies (1993), pp. 93-109.”
Elsewhere in the amicus brief, the writers show how the issue is one particularly well-suited to Supreme Court review and unentitled to stare decisis deference, that the factual premises of the Apodaca decision are simply not true, that the rule marginalizes the views of racial minorities and women, and diminishes the “beyond a reasonable doubt” standard required for criminal conviction. In short, it shows what every defense attorney trying a criminal case under the rule has always known or suspected: it was specifically designed to make convictions easier to obtain, under circumstances where the prosecution might as well say, “Iff’n we do get one or two negroes on a jury, we don’t need their cotton-pickin’ votes!” It is tokenism pure and simple, a way to reduce minority participation in the jury process to ineffectiveness and mere window dressing.
Meanwhile the U.S. Supreme Court, through the unlikely vehicle of Justice Antonin Scalia writing for the majority in Blakely v. Washington (2004), has reminded us by quoting Blackstone that at common law a defendant could not be convicted except by “the unanimous suffrage of twelve of equals and neighbours” and on proof beyond a reasonable doubt. By that standard, Corey Miller was not legitimately convicted of second-degree murder, and should not have been sentenced to life without parole. And he is only one star among many faceless and nameless so convicted.
On July 15 the U.S. Supreme Court ordered distribution of the Bowen filings to the full court for conference later this month, on September 29. Please pray for their guidance to do what is right.
*Disclosure: In October, 2001 the writer deposed Percy Miller, Jr., p/k/a Master P, key defendant in the federal civil suit Craig Bazile et al v. Boutit,Inc. , as one of the counsel of record for plaintiffs in that case, which continues in the Southern District of California. The deposition’s contents are the subject of a confidentiality agreement.