The surprising part about the State’s argument in favor of keeping people convicted under Jim Crow juries is how poorly it was crafted and defended. However, those of us who have been fighting the system know, even those of us who help a wrongfully convicted person be released after decades, that the State need not craft good arguments. The judges defend the State already. So the question becomes:
Did any of the oral arguments matter?
Either way, here are some nuggets:
The State rested its case on two major points: (1) There are no watershed new rules, i.e. there is nothing groundbreaking to change in the realm of our criminal legal system. (2) The Legislature is crafting a remedy, so the Court need not do anything.
First, although a unanimous jury system may not be groundbreaking for the rest of the country, it is certainly a “watershed” here. The ballot amendment, and then the Ramos decision, resulted in hundreds of people having convictions overturned, and resetting the bar for the thousands of trials to come. The State’s argument here is extremely weak. Up until 1978, a DA only needed to convince 9 out of 12 people to convict, and then from 1978 to 2019 needed ten. Jumping all the way to 12 is massive, and only now does “proof beyond a reasonable doubt” mean anything. And as Promise of Justice Initiative (PJI) lawyer Jamila Johnson pointed out, people are by our constitution: “Innocent until proven guilty.” Thus, “prove” is intended to have real meaning.
Second, the State lawyer repeatedly brought up HB 744, a bill that Chief Justice Weimer was clearly in the know about, a “compromise” remedy which would provide a possible parole option for the roughly 1500 people languishing behind bars because of non-unanimous juries. Just last week, Louisiana District Attorneys’ Association representative Loren Lampert assured the House Judiciary Committee that they would not argue to the Court that a remedy is on the way. As we noted in that judiciary committee hearing, moving HB 744 forward creates a false hope for everyone involved—including the LASC. And while Loren Lampert sat immediately behind the State’s lawyer, he didn’t make the 744 argument. His colleague did it for him.
Jamila responded with more realistic points: how late we are in the Legislative Session, how any bill would need to go through Appropriations, through the Senate, and likely need to return to the House for final passage. And quite importantly, how these “panels” never seem to work out anyway. More on HB 744—the False Hope bill—here
The State continually relied on their “finality” and “preserving resources” and “the cost” of litigating these issues. Justice Griffin asked, “Is the State’s interest in finality more important than someone’s constitutional rights?” The State replied that the constitution allowed these trials “at the time.” He provided no dollar amount for the cost the State is paying to hold people in prison. 1500 people are the equivalent of an entire prison. Many of them are already older, sentenced to ultimately die in prison, and will eventually develop (if they’re not already suffering from) ailments such as cancer, diabetes, and heart disease; others are in wheelchairs or bed bound, but clearly that cost is of no consequence to the State.
The State sought refuge in the voters’ decision in 2018 to outlaw non-unanimous juries “prospectively” through the ‘Yes on 2’ ballot amendment. He didn’t mention, so Jamila did for him, that voters were not given a choice to make the ruling retroactive.
Chief Justice Weimer asked, “Does the State deny that the non-unanimous jury was racially motivated?” The State’s response was very evasive, ultimately saying “I don’t think it matters.” But as Jamila repeatedly noted, under similar inquiry, the racial animus led us down the wrong path in 1898, and we never fully made our way out of it. Weimer repeatedly asked about the delegates from the 1978 convention, seeking to learn the lawyers’ understanding or characterization of them, and finally revealing he knew some of the delegates, including Rev. Avery Alexander. “He wouldn’t accept racial intolerance.” Weimer seemed to be homing in on the Apodaca case from the US Supreme Court (1972) being recent for the 1978 convention. As Jamila reminded them, 5 jurors in that case agreed that the 6th Amendment applies to states, but only 4 believed the non-unanimous jury called for a reversal. Perhaps Weimer is leaning towards a ruling that 1978 “cured” the racism of Jim Crow juries, and they did it for efficiency’s sake, not for the racism.
Weimer may be underestimating the latent racism and elitism of the 1978 delegates, who certainly could have moved the 10-2 verdicts over the objections of the Civil Rights advocates who were present, in very very limited number.
PJI noted that the racial intent of 1978 doesn’t matter, nor do the actual juror votes in an individual case: the whole structure is flawed. And while Justice Crain zeroed in on Equal Protection, he seemed interested in differentiating (or not) Mr. Reddick’s claim. To help him out: this case is not about getting a racist result within an otherwise sound system (not being treated equally); it is actually a violation of his right to a fair trial.
Weimer queried both lawyers on whether there was any possible middle ground—if this case were “all or nothing.” The State leaned to the HB 744 option. Jamila noted how courts craft many forms of remedies, but ultimately the people affected do not have valid convictions.
Oddly enough, the State lawyer explained that of the 1500 or so people in prison, Innocence Project estimates about 50-100 are innocent. It’s unclear if he was suggesting that leaving 100 innocent people in prison is a fair bargain for not needing to retry the other 1400, but none of the justices pushed further on this statement. They might have asked, for instance, “Are they collateral damage to the State’s interest?” or “How would you propose figuring out who those 100 people are?” And when the State did mention what they felt was overwhelming guilt, it is telling that they did not bring up Mr. Reddick, the case before the bench. Instead they referenced Edwards, an entirely different case.
When Justice Crain asked why SCOTUS did not apply retroactivity, Jamila noted that the issue wasn’t as squarely before the court as it is here in this case. She pointed out that SCOTUS clearly stated, in footnote 6, that “Louisiana remains free to find retroactivity.” Amazingly, Jamila informed the Court and the audience that this is only the 2nd time in 32 years that the court has told a state that “you can do more” on the issue.
Justice Hughes asked, “Should we give victims of crimes consideration?” Jamila said yes, and yet also that “survivors are not a monolith” and let them know that Louisiana’s “Victim’s Bill of Rights” does provide such consideration. Hughes said that there are cases where the perpetrator is not in doubt, with DNA and confessions, and people are not worried they got the wrong guy. What he was missing however, is that in many of those types of cases, people are not going to roll the dice and go back to trial. They would likely plead guilty.
The State noted how, in Mr. Reddick’s case, for example, a young boy found a gun, and now he would be older and difficult to find. The poetic injustice of that example is how the gun was found weeks later, plainly in the open (despite a massive search beforehand), not working, and not connected to Mr. Reddick other than an odd “R.R.” conveniently carved into the handle. And we shouldn’t “subject witnesses to fresh pain.” But apparently he is okay with leaving 100 innocent people to die in prison after years upon years of pain. Weimer later reminded the State that where witnesses are not available, transcripts can be used. Weimer didn’t say it, but it’s not like retrials have never happened before.
The Court will now talk amongst themselves. We should not expect a ruling prior to the Legislative Session concluding. These judges are not sequestered and do not live in a vacuum. They surely know legislators, members of LDAA, and read The Advocate, The Illuminator, and The Lens. We should likely expect their decision to be influenced by the state legislature. Perhaps if HB 744 were amended to be a ballot amendment to retroactively require unanimous convictions, it would be a fair consideration. However, if they believe LDAA is going to accurately support the 100 innocent people to be on parole for Life, while opposing the 1400 guilty people so they can die in prison… they might also believe that Jim Crow laws are not of racist intent.