How the Narrative About Louisiana's Non-unanimous Criminal Jury System Became a Person of Interest in the Case Against Justice in the Deep South

• Publication year: 2016

How The Narrative About Louisiana's Non-Unanimous Criminal Jury System Became a Person of Interest in the Case Against Justice in the Deep South

Angela A. Allen-Bell

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How The Narrative About Louisiana's Non-Unanimous Criminal Jury System Became a Person of Interest in the Case Against Justice in the Deep South

by Angela A. Allen-Bell^*

I. Introduction

Stories are central to what lawyers do; yet, to the average member of the legal community, they exist only inconspicuously. In actuality, all cases start with a story. As lawyers do their work, that initial story

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grows and evolves. When judges enter the picture, the story is revised and, ultimately, the final chapter is written; then, the process begins again with an entirely different cast of characters. This Article advocates against impersonal, mechanized systems of justice that are built upon defendants, dockets, cases, quotas, formulas, and rapidity. This Article calls for the justice community to see cases in a highly personal way—to see cases as stories written about humans. This Article also calls for a developed consciousness when it comes to stories, for stories do so much more than just shape our understanding about an event. Stories justify our empathy or lack thereof. When this thinking is applied to the practice of law and the administration of justice, the old, formula-driven, fast-paced, impersonal system becomes unacceptable. This is so because there is a recognition that the stories are in fact the people who are embedded into the social landscape along with each of us. This new model requires a cognizance about the fact that docket numbers and cases involve actual humans—just like us—who just happen to dwell in a different place in our local, national, or global environment and whose truths, pains, and burdens are as real as ours. Doing this work will not be for naught. The advocated method of administering justice will lead to more meaningful judicial outcomes and will result in a more trusting public and a society that is not marred with social unrest.

This Article will simultaneously explore two pivotal matters: Louisiana's non-unanimous jury system (in twelve-person juries in noncapital cases) and the role legal storytelling plays in the delivery of and the administration of justice.¹ My aim, as both a messenger and a story

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teller, is to bring light where darkness has persisted and to challenge readers to embrace the narrative versus counternarrative approach to dispensing justice in the Deep South and beyond. After the introduction, this Article will progress in four parts. Section II will unveil the narrative aspects of this story about Louisiana's non-unanimous jury system. It will serve as the substantive starting point for this conversation about justice as it relates to Louisiana's non-unanimous jury system by providing a legal overview of the applicable protections that Louisiana citizens have been assured. In Section III, the concept of a counternarrative is explained and applied to this particular matter of justice (Louisiana's non-unanimous jury system in non-capital cases). This section will endeavor to deconstruct the narrative presented in Section II. The aim of Section IV is to, as the Symposium theme suggests, ensure that we learn from history and use that history to chart our future. This is done by examining the following: how a lawyer's professional obligations require that lawyer to act towards the end of justice in this instance; how the refusal of the various branches of government to correct this injustice can lead to public mistrust; and, how inaction can cause racial tensions and outright public unrest. The Article ends with a conclusion in Section V.

II. The Narrative About Louisiana's Non-Unanimous Jury Law

When it comes to Louisiana's non-unanimous jury system in noncapital, criminal cases involving twelve-person juries, a narrative exists. Those who are idealistic about America's justice system and its accompanying narrative were not just born optimists. There are specific laws that entice citizens to believe in the integrity of the judicial and jury systems. The Sixth Amendment to the United States Constitution² states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.³

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Louisiana's constitution follows suit. Louisiana's constitution guarantees impartial trials⁴ and promises the protection of life and liberty.⁵ It promotes the "welfare of the people," ensures "domestic tranquility," and promises to secure "the blessings of freedom and justice."⁶ The Louisiana Constitution continues:

All government. . . originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people.⁷

From its creation until the end of Reconstruction and the withdrawal of federal troops, Louisiana required unanimous jury verdicts.⁸ Majority or non-unanimous verdicts were introduced in Louisiana in 1880 when, at that time, defendants could be convicted by vote of only nine of twelve jurors.⁹ Non-unanimous verdicts made its way to the Constitution of 1898 by way of Article 116.¹⁰ The citizens of Louisiana did not vote to adopt the 1898 constitution.¹¹ A legislative act granted authority to officials to convene and create a constitution.¹² "Both the 1913 and 1927 Constitutions reproduced nearly verbatim the provisions of Article 116 of the 1898 Constitution relating to less-than-unanimous jury verdicts."¹³ "All other jury provisions, including the requirement that nine out of twelve jurors concur when the punishment is necessarily at hard

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labor, remained constant until the 1974 Constitution, which is the current version.¹⁴

The current version of Louisiana's constitution reads, in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.¹⁵

The state code also contains a complimentary piece of legislation. It reads, in pertinent part:

Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.¹⁶

Oregon is much like Louisiana when it comes to legislation on non-unanimous juries.¹⁷ This practice is allowed there as well.¹⁸ A

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challenge to the Oregon system made its way to the United States Supreme Court in 1972. That case, Apodaca v. Oregon,¹⁹ has been consistently hailed a key precedent even to the present. Apodaca involved three defendants convicted by non-unanimous juries (two by a jury of eleven to one and one by a jury of ten to two) under a system that allowed non-unanimous juries in non-capital cases.²⁰ Their challenge was brought pursuant to the Sixth²¹ and Fourteenth Amendments.²² The Supreme Court held that these convictions did not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment.²³

The Supreme Court provided brief reasoning. The Court's analysis began with the parallel it drew between the Apodaca challenge and its 1970 ruling in Williams v. Florida,²⁴ raising the question of whether the Sixth Amendment required all juries to consist of twelve people. In reflection, the Court recalled that Williams concluded that a unanimous jury was not required.²⁵ After this contemplation, the Court took note of the fact that the requirement of jury unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the eighteeth century.²⁶ Next, the Court explored the legislative history of the Sixth Amendment of the United States Constitution and then the Court pondered the function of a jury in civilized society.²⁷ The Court said, "the purpose of trial by jury is to prevent oppression by the Government by providing a safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."²⁸ The court interpreted this to mean what was central to ensuring Sixth Amendment protections were the human interplay and commonsense judgments that flowed from the jury process and not necessarily the number of humans that partook in this process.²⁹ In the view of the Court, the Sixth Amendment is satisfied when there is "a group of laymen representative of a cross section of the community

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who have the duty and the opportunity to deliberate, free from outside attempts at intimidation . . . ."³⁰ The Court in Apodaca said there was no functional difference in a verdict rendered by a vote of eleven to one, ten to two, or a unanimous vote of twelve.³¹ Near the end of its analysis, the Court entertained the argument that unanimity...