This guest post was submitted by King Alexander, District 7 Director of the Louisiana Association of Criminal Defense Lawyers and Co-Chair of its Amicus Committee.
Louisiana Gov. Bobby Jindal has recently toured the state making the case for increased criminal penalties for certain kinds of offenders. That might be a good idea, if we would just stop prosecuting and convicting innocent people.
Many Americans don’t think this happens. The occasional longsuffering prisoners exonerated by DNA are seen as rare, and maybe they are, partly because DNA plays no role pro or con in the vast majority of cases, so that all others wrongfully convicted have no magic key.
Professionals who defend criminal cases in Louisiana state courts, including former prosecutors, well understand that wrongful convictions not only happen in our state– they are commonplace, due in part to our combination of pro-prosecution laws that add up to a nuclear arsenal. The most peculiar such law, and perhaps the number one reason why we have substandard criminal justice in Louisiana, is our majority verdict law.
In Louisiana state courts, a unanimous jury is not necessary to convict a person of any crime except first-degree murder. In all other cases, a Louisiana criminal jury can convict a person of a serious felony by only ten out of twelve votes. What? That’s right: one or two jurors can vote to acquit, but the defendant is still convicted. Some of those felonies carry life without parole; in Louisiana sentencing, life means life. In forty-eight states (Oregon being the other oddball) and in all federal courts, only a unanimous jury can convict or acquit. In the realm of legal normalcy, a non-unanimous jury is a hung jury, and the state may retry the case if it so chooses.
Most Louisiana residents, like other Americans, get their criminal justice norms from television shows like Law and Order. Thus they assume that if one juror votes “not guilty” then there is no conviction. Not so in Louisiana. One or even two jurors can be fully convinced that the state has not met its burden of proof of guilt beyond a reasonable doubt. But if most of them are anxious to go home (or fishing) on a Friday afternoon after a tedious trial, and find that the judge will not dismiss them until they work more diligently to reach a verdict, then it is not unusual for some of the holdouts to be bullied or fatigued into joining the majority until only ten of them are willing to return a verdict of guilty. Then they can all leave the courthouse and forget about it, reasoning that they followed the law so their consciences should be clear.
Why does Louisiana have this unusual law that breaks with American heritage and the traditions of the common law of England? The answer should shock you: it was enacted for openly racist reasons. The official proceedings of the Louisiana Constitutional Convention of 1898 make that clear. That body, meeting in the wake of a bitter Reconstruction experience, declared a slate of measures touted as designed “to assure the ascendancy of the Anglo-Saxon race in Louisiana.” Among these 1898 measures was the first “majority verdict law” in Louisiana, the reasoning for which might be expressed thus: “Iff’n we do end up with one or two [non-whites] on a jury, why, we won’t need their cotton-pickin’ votes!” Louisiana has had two constitutional conventions since then, for the Constitutions of 1910 and 1974. But each time, the majority verdict law was kept, if not for openly racist reasons, then for the simple political expediency, favored by the powerful district attorneys’ and sheriffs’ lobbies, that such a law makes it much easier to get convictions. The effect is racially disparate regardless of the conscious motivation.
Isn’t this unconstitutional? After all, it’s the right to trial by jury, and a conviction destroys the right to vote, and the right to bear arms, and numerous other privileges and immunities, all fundamental constitutional rights. Scholars do believe that the majority verdict laws of Louisiana and Oregon are federally unconstitutional. However, the U.S. Supreme Court has yet to agree to hear the issue, having denied certiorari most recently in 2008 in Louisiana v. Lee and 2009 in Bowen v. Oregon. The Supreme Court is thought likely to invalidate these laws once it considers a case. The likeliest route to certiorari would be a panel of the U.S. Ninth Circuit hearing a post-conviction case from Oregon and finding that state’s version unconstitutional, thus creating a conflict with the U.S. Fifth Circuit which has upheld the Louisiana version. It is a fair argument, and not an original one, that excessive convictions amount to an extension of slavery, complete with denial of the right to vote, denial of the right to bear arms, and a way around the prohibition of involuntary servitude. The voting remainder of society becomes more and more homogenous and conviction-oriented. Has Louisiana been well-served by this, or could it be one reason why we find ourselves near the bottom of many good lists, and near the top of many bad ones?
Consider that we are presently in an age of societal hysteria over child sex offenses, as badly as colonial Salem was over witchcraft. Wags have said, “Rape is such a serious offense that innocence is no excuse.” Any offense against a juvenile is also a hot-button issue– what decent person does not feel outrage at an offense against a captive and defenseless child? The two accusations combined are positively dynamite. The problem snowballs in this fashion: All accused are perp-walked on the evening news. Legislators, prosecutors, and judges run scared of the mobs of their own creation, since they tend to demagogue these issues every time they run for office. They all want to retire in their positions. As Upton Sinclair put it, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” Dodgy cases are accepted for prosecution, the thought being that convictions are easy to obtain, and in any event, let juries take the political heat. In that environment, rejection of an inflammatory accusation, however suspect, or acquittal in a bench trial, is unthinkable. For this reason, often the only thing worse than facing trial by jury on a politically-sensitive accusation is facing trial by judge. So we have come to the topsy-turvy condition where sometimes the course of action morally required is politically impossible. Our “rape shield statute” prevents juries from hearing evidence about accusers that is true, relevant, and crucial to a fair defense, and the majority verdict law, requiring only ten out of twelve jurors to convict, delivers the coup de grâce.
Greased legislative skids plus societal hysteria equals the perfect storm. These kinds of accusations have been rendered all but indefensible. Even in the many cases involving no physical evidence, no corroborating witnesses, and an accused person who maintains his innocence and lacks any criminal record, defense attorneys find that they are losing, and they are losing 10 to 2. In other words, the result in any legally normal state would not be a conviction. No wonder Louisiana has the highest incarceration rate of all the states. There is very little to be done about setting such wrongful convictions right under existing law. Our courts of appeal hold that the uncorroborated testimony of the accuser is alone sufficient to uphold a conviction. Cynical accusers know this, and have all the power of the state jumping through their malicious hoops with full impunity. In fact, should any of them express a desire to recant, they are advised of their own potential criminal exposure for having made a false report, and so remain well-motivated to continue the charade.
With term limits, few remain in office long enough to see the ultimate destructive effects of our atypical, deck-stacking laws, and to make reforms. Here, then, is a bargain for Gov. Jindal and the Louisiana legislature: Go head and increase the penalties of the guilty if you wish, but stop prosecuting and convicting the innocent. Before you do anything else, repeal the majority verdict law conceived in racism and maintained in shameful derogation of our normal and traditional American ways.
King Alexander, Lake Charles