In a 1976 Valparaiso Law Review article, “Historical Developments of the Interrelationship of Unanimous Verdicts and Reasonable Doubt,” Anthony A. Morano noted that in pre-colonial America, English law “required that jurors be kept together incommunicado during deliberations, without food, drink, fire or candle. This was done ostensibly to avoid jury tampering and to expedite deliberations. British jurors were coerced to unanimity in this manner until 1866, when it was decided that they might be discharged for inability to agree after a reasonable time, in which event the accused could be tried again.”
The Framers of this nation’s Constitution recognized in that document’s Sixth Amendment the fundamental right to a trial by jury. The intent of the Framers that a jury verdict be unanimous as evidenced in Supreme Court Justice Joseph Story’s Commentaries on the Constitution of the United States (1891): “A trial by jury is generally understood to mean . . . a trial by jury of twelve men . . . who must unanimously concur in the guilt of the accused . . . . Any law, therefore, dispensing with any of these requisites, may be declared unconstitutional.”
Ratified in 1791 as part of the Bill of Rights, the Sixth Amendment right to a jury trial did not apply to the states until 1868 with the ratification of the Fourteenth Amendment that made the amendment’s Due Process clause (and the entire Bill of Rights) applicable to the states.
Non-Unanimous Verdicts are Relics of Jim Crow Era
Three decades after ratification of the Fourteenth Amendment, the State of Louisiana in its 1898 constitution convention became the first state to allow non-unanimous verdicts in criminal cases. As stated in the Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, 8-9 (1898), the very purpose of that constitutional convention was to effectively sanctify Jim Crow laws and to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”
In 1934, the State of Oregon became the second state to reject the historical right to jury unanimity. That decision was also rooted in that state’s sordid history of racial and ethnic discrimination. It came after a jury could not reach a unanimous verdict in a case of a Jewish man being tried for the killing of a Protestant man. Led by vicious editorials in the Morning Oregonian, the public outcry was so swift and intense that the Oregon legislature proposed a constitutional amendment allowing for non-unanimous jury verdicts—an amendment that a racially-biased population quickly approved.
The U.S. Supreme Court in 1970 held that in all criminal proceedings the due process clause of the Fourteenth Amendment requires that guilt against a defendant be proven beyond a reasonable doubt. Two years later the high court took up the issue of Oregon and Louisiana’s non-unanimous jury verdict laws based on the argument that they effectively compromised the reasonable doubt standard.
1970s Supreme Court Ruled Non-Unanimous Guilty Verdicts Permissible
In sharply divided opinions (4-1-4) in Apodaca v. Oregon and Johnson v. Louisiana, the court ruled that the reasonable doubt standard does not demand jury unanimity and that verdicts of 10 (as in Louisiana) and 9 (as in Oregon) out of twelve are constitutionally permissible.
The Supreme Court this term will once again seek to clarify the jury unanimity issue in Ramos v. Louisiana.
In 2016, Evangelisto Ramos was convicted of murder in New Orleans by a 10-2 jury verdict. He was sentenced to a mandatory life sentence without the possibility of parole. This was a close case with no eyewitnesses as his attorney has informed the Supreme Court. There was certainly some reasonable doubt in the jury’s decision as evidenced by the two jurors who refused to sign off on the guilty verdict.
Ramos will spend the rest of his life in prison if the high court once again gives constitutional blessing to a 10-2 jury verdict in a second degree murder case. In 2013, the Supreme Court let stand a 10-2 Louisiana jury verdict in the case of Miller v. Louisiana.
Louisiana Amends Constitution
Louisiana’s non-unanimous jury verdict issue gained national media attention in 2016 when Cardell Hayes was convicted by a 10-2 jury vote in the shooting death of Will Smith, a beloved New Orleans Saints football player. One of the holdout jurors was so incensed by the jury’s rush to judgment that, while banging his fists on a table in a rage, he shouted at them:
“This is insanity! You said to the judge you would uphold the law! What I’m hearing from you guys is you have doubt. Nobody here knows exactly what happened. That’s doubt.”
Juror 12’s outburst apparently led to the jury’s decision to convict Hayes of manslaughter rather than the charged second-degree murder.
Louisiana voters also apparently heard Juror’s 12 outburst as well. Last November 6 those voters approved an amendment to the state’s constitution requiring that all future jury verdicts must be unanimous. The law took effect January 1, 2019.
Pre-2019 Cases Create Troubling Dilemma
The problem for Evangelist Ramos and hundreds of other Louisiana inmates convicted by non-unanimous jury verdicts is that the new law applies only to trials occurring on or after January 1, 2019. Louisiana voters apparently were not prepared to undo all these non –unanimous jury verdicts allowing many of the inmates to go free. In effect, these inmates will remain in prison—some for the rest of their lives—based on a 120-year-old racist Jim Crow law.
The Supreme Court could essentially do the same thing in Ramos’s case: reverse his conviction but rule in such a way that the decision would apply only to his case. Or the Court could defer to the voters recent constitutional amendment and pass on addressing the non-unanimity issue altogether. Either way, it will leave a lot of Jim Crow era defendants in the Louisiana prison system.
The law is not always fair or just, opting for practicality over both.