James Gill: Jury rules aid sloppy judicial process in La.

We are so keen to put citizens behind bars in Louisiana that we can’t afford to be too fussy about whether they did the crime.

We lock ’em up, innocent or guilty, at a rate unmatched anywhere. We are the world incarceration capital, in large measure, because legislators go in mortal fear of being called soft on crime. That we also should lead the pack, per capita, in wrongful convictions may bespeak a high level of lawyerly incompetence in a system that remains bedeviled by racism.

But maybe there would be fewer miscarriages if Louisiana weren’t the only state where defendants can be imprisoned, even for life, after only 10 jurors vote to convict. Only in capital cases is unanimity required.

Oregon also accepts 10-2 verdicts and requires unanimity before a death sentence can be imposed. In noncapital murder cases, Oregon will settle for 11-1. No defendant can be convicted of a crime by a split decision in any other state, or in a federal court.

The notion that a unanimous jury is a “sacred bulwark” of liberty arose in medieval England, was warmly embraced by the Founding Fathers and was incorporated into Louisiana law until 1898, when the state constitution was amended for the express purpose of keeping black people in their place.

The new constitution allowed conviction by a 9-3 vote, and so it remained until 1974, when the 10-2 standard was adopted. Although by that time constitutional convention delegates were no longer declaring their mission was to maintain white supremacy, their decision to keep the balance tilted in favor of the prosecution inevitably hit black defendants harder. Sure, we like to lock up all kinds, but black people are so seriously overrepresented in the prison population that there’s no doubt where our preference lies.

The Louisiana appeals court in New Orleans has opined that, whatever the motives of their 19th-century predecessors, delegates to the 1973 convention retained nonunanimous verdicts purely for the sake of “judicial efficiency.” Certainly, cases are more promptly wrapped up this way, but the American preference traditionally has been for justice, be it ever so messy.

The appeals court opined on the reasons for Louisiana’s anomalous jury rules in turning aside a challenge to their constitutionality. The court decided, as the justices of the state Supreme Court have also, that only the U.S. Supreme Court can ban nonunanimous verdicts because it gave them its blessing in 1972.

Ben Cohen, of the Promise of Justice Initiative in New Orleans, representing several men imprisoned by majority verdict, hopes the U.S. Supreme Court will take its blessing back. Indeed, he argues that the reasoning has been repudiated in several subsequent decisions.

Five of the nine U.S. Supreme Court justices concluded in 1972 that the Constitution requires a unanimous verdict in federal trials, but only four of those five justices went so far as to say the states must play by the same rules. The odd man out was Lewis Powell, who was for unanimity in federal trials and against it at the state level, leaving Louisiana and Oregon to go their own way.

Subsequent U.S. Supreme Court decisions have shown just how goofy that was. It is now well-established that the due process clause of the 14th Amendment forbids the states to water down protections guaranteed by the Bill of Rights. And various U.S. Supreme Court decisions since 1972 have accepted that a unanimous verdict is implied in the Sixth Amendment’s right to trial by jury.

So long as the ruling remains on the books, however, Louisiana courts will declare themselves powerless to require unanimous verdicts. Defendants will, thus, continue to be convicted, or acquitted, by juries who will weigh the evidence less carefully, spend less time in discussion and take fewer ballots than is the case elsewhere. A few lucky acquittals we can live with, but locking people up for life after such a skimpy process cannot comport with any rational concept of justice.

Back in 1898, that wasn’t the issue. The intent, according to the constitutional convention president E.B. Kruttschnitt, quoted in Cohen’s petition, was to “perpetuate the superiority of the Anglo Saxon race in Louisiana.” So they scrapped unanimous verdicts and took black jurors largely out of the picture.

James Gill’s email address is jgill@theadvocate.com.