How Louisiana's Unanimous Jury Proposal Got On The Ballot

Oct 23, 2018
Originally published on October 26, 2018 11:16 am

The Louisiana Association of Criminal Defense Lawyers works to protect rights guaranteed by the state and federal constitutions in criminal cases. When the organization decided to challenge Louisiana’s non-unanimous jury system, they turned to New Orleans Senator J.P. Morrell to sponsor the bill through the legislative process.

Senator Morrell agreed to carry the bill that could pave the way for unanimous juries in Louisiana - but he knew it was a long shot, especially in an increasingly partisan legislature.

"It’s a two-thirds vote throughout the process and those are very hard to do on a good day," Morrell says.

The first stop for the bill was a Senate Judiciary committee hearing. In his testimony, Morrell raised concerns about the constitutionality of the state’s non-unanimous jury law - which allows 10 of 12 jurors to convict someone of a felony.

“I think it flies in the face of what our Founders intended when they said ‘a trial by a jury of your peers'," he said.

Morrell argued that in every other state in the nation - besides Louisiana and Oregon - “a jury of your peers” has been interpreted to mean all members of a jury agreeing on a verdict. That argument was good enough to get past members of the committee.

But ahead of debate on the Senate floor, the bill didn’t have enough votes to pass. Then, Senator Dan Claitor took to the podium.

“Are you familiar with a practice by DAs, Assistants - and frankly, me - I’ll put myself out there," Claitor said, "that if I had a particularly hard case, and I had the opportunity to have a more difficult felony - I would up-charge them, because it was easier for me to convict them with 10 out of 12, than it is 6 out of 6.?”

Lesser charges are heard by a six-person jury - which must return a unanimous decision. Senator Claitor explained that prosecutors will charge someone with a more serious crime in order to get a 12-person jury -- because prosecutors have a better chance at winning their case when a jury doesn’t have to be unanimous.

Morrell credits Claitor’s example with getting the bill out of the Senate.

"When he gave that testimonial - I call it the confessional, because he was saying bad things prosecutors do," Morrell says, "there were people who approached me and said ‘I was a no on this bill, but I just called my DA and told them I’m a yes now.’"

When the final vote was called, 27 Senators voted in favor of the bill - one more than needed for passage.

The bill moved to the other side of the Legislature where, in the House Criminal Justice committee, it faced strong opposition.

Sabine Parish District Attorney Don Burkett testified against the bill. He said it’s difficult to weed out potential jurors who have what he calls an agenda - people who walk in with a decision already made.

“The law says we prove guilt beyond a reasonable doubt," Burkett said. "And I suggest to you because one person gets on a jury with a hidden agenda and won’t vote guilty doesn’t mean it wasn’t proven beyond a reasonable doubt.”

Calcasieu Parish District Attorney John DeRosier agreed, saying one person on a jury can have too much impact on a trial. He’s concerned that requiring unanimous verdicts could result in more mistrials - slowing down the judicial process, because cases would have to be heard again.

He urged members of the committee consider more than the history of the law when they vote.

“I’ve heard a lot about this system being adopted as a result of a vestige of slavery. I have no reason to doubt that. I’m not proud of that - that that’s the way it started. But it is what it is," said DeRosier.

That statement outraged many on the committee, including Representatives Ted James and Denise Marcelle.

"We can agree to disagree but what we can’t do is sit here and be insulted by saying it is what it is about racism," Marcelle said.

“To admit that it started in slavery and to say ‘it is what it is.’ I am utterly offended," said James.

Morrell says the District Attorneys testimony did more to solidify support for the bill than drive opposition against it. "That committee was suppose to be a slim majority getting out - it got out unanimously."

By the time it reached the House floor, Morrell says support for the bill came like an avalanche. Lobbying groups from both the left and right were signing on to support the measure, which passed the House with 84 votes.

What started out as a long-shot in the Legislature, now goes to a vote of the people on November 6th, where a simple majority could amend the state’s constitution.

"This is probably going to go down as the most substantial thing I’ve ever done as a legislator," says Morrell.

Copyright 2018 WWNO - New Orleans Public Radio. To see more, visit WWNO - New Orleans Public Radio.