On Tuesday, March 22nd, attorneys representing Kelvin Kaigler and James Bishop will file motions for a new trial. As this article from the New Orleans Times Picayune suggests, one of the key issues will be the applicability of Louisiana’s majority verdict rule to this and similar cases. The issues are thorny, so I have reprinted the entire article for you.
If you haven’t seen King Alexander’s excellent guest blog on the racist roots of the majority verdict law please check it out.
But there will be far more than procedural issues discussed in Covington tomorrow. There is a strong possibility that new evidence will be presented. I wish I could be there in person, but the last minute nature of the hearing makes that impossible. I will be soliciting firsthand reports and will let you know how things go as soon as possible.
By Benjamin Alexander-Bloch, The Times-Picayune
March 21, 2010, 8:00AM
One recent day at the St. Tammany Parish courthouse in Covington, two first-degree murder defendants faced different standards of guilt and innocence.
On the third floor, state Judge William J. “Will” Crain determined a unanimous jury verdict would be necessary to decide Jody “Florida Boy” Swafford’s fate. Meanwhile, in the courtroom directly below him, state Judge Richard A. “Rick” Swartz had deemed a guilty vote by only 10 of 12 jurors sufficient to convict Ray “Rayray” Brooks of that same charge.
Both defendants faced the charge of non-capital first-degree murder, punishable by mandatory life imprisonment.
Until 2 1/2 years ago, state law required that all first-degree murder cases – regardless of whether the state pursued the death penalty – needed unanimous jury verdicts for convictions. In August 2007, however, the law changed to allow non-unanimous verdicts – 10 of 12 jurors – to convict defendants of first-degree murder charges in cases where district attorneys were not pursuing the death penalty.
The whole discussion highlights a generally unacknowledged fact: Louisiana and Oregon are the only two states that still allow individuals to be convicted of felonies by non-unanimous – often referred to as “majority” – jury verdicts. Oregon requires a unanimous vote only in first-degree murder cases, whereas Louisiana now only requires it in cases involving the death penalty.
The issue for state judges now is whether to apply the more lenient jury guidelines – non-unanimous verdicts – in cases where the murders occurred before the law was changed.
Sometimes the Legislature will specify whether a new law should be applied retroactively, but it left the question open in this case. The answer is not simple. It will likely depend on the state Supreme Court’s eventual interpretation, and could force district attorneys throughout the state to retry several high-profile first-degree murder cases, including the recent convictions in St. Tammany of James A. “Scarface” Bishop and Kelvin W. “Dreads” Kaigler on four counts of first-degree murder for the largest massacre in St. Tammany memory.
Recent unanimity in St. Tammany
Swafford, Brooks, Kaigler and Bishop committed their crimes before the amended law took effect on Aug. 15, 2007. In fact, all the murders occurred in 2006, long before the future legislation was even proffered to the state judiciary committee for possible passage.
The St. Tammany district attorney’s office initially planned to appeal Crain’s recent decision to the 1st Circuit Court of Appeal, the first step before a potential state Supreme Court run. But district attorney’s officials ended up not filing the writ, in part because Crain’s jury ended up unanimously convicting Swafford as charged.
The day after Crain’s jury returned its verdict, Swartz changed his own position mid-trial, deciding that he too would require a unanimous verdict for Brooks. His decision apparently came after Crain discussed the matter with him, according to authorities close to the matter.
And the next day, on March 12, Swartz’s jury also returned a unanimous verdict, finding Brooks guilty as charged of first-degree murder after less than two hours of deliberation.
With both verdicts coming down their way, St. Tammany district attorney’s officials have said they are now much less inclined to appeal Crain and Swartz’s decisions about unanimity, but they still acknowledge that the state Supreme Court should rule on the issue before too many more non-capital first-degree murder cases go to trial.
Crain and Swartz both played it safe, hedging their bets by requiring unanimity. In his decision, Crain even noted his ultimate uncertainty regarding the issue, saying that the fact both the St. Tammany district attorney’s office and St. Tammany public defenders “can have such clear positions on opposite sides tells you why for me it’s totally unclear.”
In public defense attorney Kevin McNary’s argument to the court, requesting unanimity, he added, “I think it’s reprehensible that the Supreme Court has not addressed this issue… but we have to work with what we have.”
In January, state Judge Martin Coady took a different stance, deciding that a unanimous verdict was not necessary to convict Bishop and Kaigler of four counts of first-degree murder, for the shooting deaths of a 36-year-old woman, her fiancÃ©, their 16-year-old daughter, and a 15-year-old nephew. Eleven of 12 jurors eventually convicted both Kaigler and Bishop of all four counts.
Now, both Bishop’s defense attorney, John Lindner, and Kaiglers’ attorney, Martin Regan, have filed motions for a new trial, arguing that unanimity was needed and that the verdict against their clients therefore constitutes a mistrial.
On Tuesday, Coady is scheduled to hear both attorneys’ arguments for a new trial.
Lindner spearheaded the recent debate. Realizing a possible discrepancy in the law, he prepared his motion for a new trial, and then informed Regan and Swafford’s defense attorneys, who later discussed the issue with Brooks’ attorneys.
However Coady rules on Tuesday, his decision likely will be appealed to the 1st Circuit Court and then will make a state Supreme Court run. If he rules against a new trial, Lindner is prepared to appeal. If he rules for a new trial, the district attorney’s office will likely lead the charge.
Lindner is arguing that the 2007 legislative change cannot be retroactive for a variety of reason.
For one, he argues it cannot be applied retroactively because the legislative amendment was to Bishop’s disadvantage, and a law cannot be applied retroactively if it alters the situation of the accused to his disadvantage.
Requiring only 10 of 12 jurors to find Bishop guilty made it easier for a conviction to be obtained, Lindner says. In the Swafford case, Assistant District Attorney Nick Noriea Jr. argued the converse for the state in his plea against unanimity, saying that in fact a non-unanimous verdict also favors a defendant as it only requires 10 of 12 jurors to acquit.
Lindner also argues that regardless of the advantage or disadvantage to his client, the issue is whether the legislative change in 2007 was “substantive” or “procedural,” meaning whether the change only affected the procedures by which cases are tried, or where the change also affected the substance of the defendants’ rights.
That interpretation seems to depend on what side of the road you are on. St. Tammany district attorney’s officials contend it was procedural, whereas most defense attorney argue it was substantive.
Both sides ultimately agree that the state Supreme Court must make its two cents known, as several convictions rest in its hands.
A broader debate
Some defense attorneys argue that under current state law, district attorneys can hedge their bets by charging defendants with non-capital first-degree murder, knowing that even if juries return the lesser charge of second-degree murder, defendants still will receive an identical, mandatory punishment: life behind bars. In other words, since the 2007 legislative change, two murder charges now carry the same punishment and both only require the same burden – 10 of 12 jurors to concur – so why not pursue first-degree murder if possible?
The U.S. Supreme Court was poised to hear a case about the constitutionality of “majority” verdicts – in Louisiana and Oregon, the only two states that still allow them – last summer, but in October, the high court ultimately declined to hear it.
Proponents of majority verdicts contend they are more efficient, create fewer hung juries, save taxpayers money by not having to retry as many cases, and that 10-2 verdicts are as decisive but just prevent “rogue jurors” from creating unnecessary mistrials. Conversely, defense attorneys typically argue that, especially in districts like St. Tammany where only one or two ethnic minorities usually sit on any given jury, majority verdicts make it easier for the minority’s vote to be disregarded.
The American Bar Association is against “majority” verdicts, and the Louisiana Association of Criminal Defense Lawyers similarly has argued that the state’s system of allowing non-unanimous felony jury verdicts disenfranchises black jurors. Meanwhile, the Louisiana District Attorneys Association specifically asked the U.S. Supreme Court not to hear the 10-12 jury issue in October.