Orleans judge denies challenge to Louisiana’s non-unanimous jury … – The Advocate

An Orleans Parish judge on Thursday refused a request by a defendant awaiting trial in a murder case that the judge rule that Louisiana's century-old provision allowing non-unanimous jury verdicts is unconstitutional.

Criminal District Court Judge Arthur Hunter, reading his opinion from the bench, found that attorneys for Christopher Lee failed to prove there was a racist intent behind, or a disparate impact on black defendants from, the provision in the state's constitution allowing less than unanimous verdicts.

Hunter said that while lawmakers showed clear racist intent in crafting other laws, he saw no evidence from the testimony at last week's hearing of "open racism" in the decision to approve non-unanimous convictions.

"The court is well aware of the racism of the time and attempts to disenfranchise minorities. The court does not seek to ignore or downplay such a dark period in our history," Hunter said. But "recognizing and understanding the racial animosity of the time is not enough to establish a discriminatory motive" for approval of non-unanimous verdicts.

Rather, he said, lawmakers "stressed court efficiency in the enacting of this law."

Hunter also said Lee's attorneys and the experts they called to testify failed to establish that the law discriminates against black defendants.

"The court needs direct evidence and exacting science," he said.

Hunter said overturning the constitutional provision would require "conclusive demographic data which necessarily shows disproportionate impact" on black defendants.

His ruling came in response to a legal challenge from attorneys for Lee, who faces an April retrial in a 2010 attack that left Chad Huth dead at his Gentilly home. A jury deadlocked last year in his first trial.

Christopher Lee had an alibi, and it was enough to deadlock an Orleans Parish jury.

Lee's public defender, Colin Reingold, argued that Louisiana's allowance for 10-2 verdicts to convict defendants in felony cases was designed to marginalize the influence of black jurors in the state.

Reingold said the provision violates Lee's right to equal protection under the law.

Oregon, the only other state that allows for split verdicts, requires juries to reach a unanimous verdict when a life sentence is at stake. Criminal trials held in federal court in Louisiana and every other state require unanimous verdicts.

Louisiana's constitutional provision is broader, allowing 10-2 verdicts in all but capital cases, for which unanimous verdicts are required. In trials for lesser crimes that require only six-member juries, the verdicts must be unanimous.

The Louisiana Supreme Court has upheld the system on several occasions and, in 2009, overturned a decision by a Calcasieu Parish judge who had ruled that suspects in two second-degree murder cases were entitled to unanimous verdicts.

Countless Louisiana defendants have challenged the jury provision in pre-trial motions. Reingold's motion was more detailed than most in ascribing racist origins to the provision.

Hunter entertained the motion at a lengthy hearing last week in which scholars testified about the history behind the provision and its implications for jury deliberations.

On Thursday, Reingold pointed to the recent decision to remove Confederate monuments from the New Orleans streetscape.

"The criminal justice system has its own monument to its racist history," Reingold said of the jury provision.

He said it is "a stain on our state and should be an embarrassment to all citizens of Louisiana ... the only place in the country where you can go away for life when two people have reasonable doubt about your guilt."

Reingold mocked the provision's stated intent of promoting judicial "efficiency," calling that a kind of code for racist intentions. The system, he said, is "more efficient in sending black men to jail and sending them to work in the fields in Angola, because that was the intent of the delegates."

But Assistant District Attorney Laura Cannizzaro Rodrigue said no evidence from the hearing last week proved the provision had racist origins, or outcomes. There was no "smoking gun," she argued.

"There has been zero evidence presented that either the Supreme Court or the local appellate courts have been wrong, and that this court has been presented with any evidence that would change that," Rodrigue said Thursday.

She also questioned why Hunter invited the challenge in a case involving a nearly 7-year-old murder case that has already been the subject of two trials the hung jury for Christopher Lee last year and, earlier, a murder conviction and life sentence for Lee's brother, Joshua Lee.

Rodrigue said that at Christopher Lee's first trial last year, when a jury deadlocked on a 6-6 vote, four of five black jurors favored convicting him. "They actually silenced the white voters on that jury who were unable to decide or were voting for acquittal," Rodrigue said.

The U.S. Supreme Court considered the legality of Oregon's non-unanimous jury system in 1972 and concluded the practice did not violate criminal defendants' constitutional rights.

At last week's hearing, however, Lawrence Powell, a historian and emeritus professor at Tulane University, attributed the state's split-verdict system to an "invidious racial intent" among lawmakers who gathered at a constitutional convention in 1898 for the purpose of disenfranchising blacks and poor whites.

It was during that convention that the state switched from requiring unanimous jury verdicts to permitting convictions by a vote of 9-3.

"Everything is about race with this thing," Powell testified. "The whole thing is saturated, drowning in it."

The convention's president, New Orleans lawyer E.B. Kruttschnitt, told the delegates, all of whom were white, that they had been summoned to the 1898 convention "to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics."

The state's later adoption of a 10-2 standard, at the 1973 constitutional convention, came on the heels of a similar period of racial unrest, Powell said, referring to the civil rights movement.

The 1973 decision, Powell said, amounted to a compromise among lawmakers, some of whom had pushed for a switch back to requiring unanimous jury verdicts.

Kim Taylor-Thompson, a professor at New York University School of Law, testified that non-unanimous verdicts suppress debate and reduce the participation and influence of minority jurors.

Hunter, a former police officer who has spent nearly two decades on the bench, has been known to welcome broad challenges to systemic issues in the criminal justice system.

Over the years, his courtroom has become a forum for challenges related to the state's troubled funding scheme for indigent defense, for instance. His rulings over that issue, however, have met resistance from higher courts.

His ruling Thursday suggested that Hunter felt that a ruling finding the jury provision unconstitutional would fail on appeal.

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