How Promise of Justice Initiative Plans To Get Justice Against Split Jury Practice for Convicted Defendants

March 28, 2021

The U.S. Supreme Court ruled in 1972 that non-unanimous juries—those that convict a defendant with a split decision—are in violation of the 6th Amendment. But a loophole, until recently, allowed two states to maintain the practice. Special Correspondent Tom Casciato looks at the roots of split-jury verdicts and what faces those convicted by them.

Our partners at PBS NewsHour Weekend report on this story.

TRANSCRIPT

Hari Sreenivasan:

The U.S. Supreme Court ruled in 1972 that non-unanimous juries—those that convict a defendant with a split decision—are a violation of the 6th Amendment. You might think that would have been the end of the story. But there was a loophole, and two states maintained non-unanimous jury verdicts them until recently.

NewsHour Weekend Special Correspondent Tom Casciato looks at the roots of split-jury verdicts and what’s ahead for those convicted by them. This segment is part of our series “Chasing the Dream: Poverty and Opportunity in America.”
Tom Casciato:

This story begins with an 18-year-old who went to prison in 1982 with a mandatory life sentence for second-degree murder, convicted in New Orleans by a jury vote of 10-2.

While an inmate, Keith Amedee earned a G.E.D., he graduated from a paralegal studies program, and did much more.
Keith Amedee:

I started working in the kitchen. I was a breakfast cook, a pot cook. I did air conditioning, refrigeration, and I gained skills with the sewing machine.
Tom Casciato:

Those sewing machine skills helped him learn to make drapes and handbags, and though still incarcerated, to do some of his time as a tailor for Louisiana Governor John Bel Edwards, who granted him clemency in 2020.

After 40 years imprisoned, now 58, Amadee found himself out, but still on parole, and making do.
Keith Amedee:

I’ve pressure washed a house. I cut grass, I install windows. Whatever I can do to get by.
Tom Casciato:

If this sounds like a familiar tale of reform and redemption, consider that in 48 other states, with a 10-2 vote on second-degree murder, Keith Amedee wouldn’t have been convicted on that particular charge in the first place.
Jamila Johnson:

One of the problems with non-unanimous jury verdicts is that it allowed prosecutors to charge for significantly more serious crimes than they had the evidence to convict under.
Tom Casciato:

Amedee’s attorney is with the New Orleans nonprofit The Promise of Justice Initiative, Jamila Johnson. She believes he would have faced only a lesser charge.
Jamila Johnson:

If you knew that you only needed 10 people and that there was no penalty for seeking a more serious charge, there’s no reason why district attorneys wouldn’t seek those more serious charges.
Tom Casciato:

Louisiana did away with non-unanimous juries in 2018.

And in 2020, the U.S. Supreme Court ruled them unconstitutional across the board in a case called Ramos v. Louisiana. But their effects still linger, in no small part due to their racist roots in a constitutional convention Louisiana held in 1898.

It took place in New Orleans and was led by illustrious citizens. Committee head Thomas Jenkins Semmes had served in the Confederate Senate during the Civil War. He noted the convention’s purpose was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.”
Jamila Johnson:

Black advocates sent letters to the Attorney General of the United States saying that all of the efforts the federal government had made to try to ensure the rights of Black Louisianans were in jeopardy, and seeking federal intervention. No one answered that call.
Tom Casciato:

The convention established that juries needed only nine votes for a guilty verdict, later amended to 10. That meant, even with a few Blacks on a jury, prosecutors could be confident in an outcome determined by the white majority.
Keith Amedee:

They knew back then that we weren’t going to have no more than one or two African-Americans on the jury pool. So African Americans, they didn’t really have a vote when they created that law. They didn’t have a vote at all.
Jamila Johnson:

And you saw 120 years that followed in which Black defendants were disproportionately convicted by non-unanimous juries.
Tom Casciato:

Louisiana isn’t the only state with a history of non-unanimous juries. One other state had them right up until the Supreme Court banned them with last year’s Ramos decision: Oregon.
Aliza Kaplan:

Similar to Louisiana, Oregon’s law is based originally in discrimination, but very different fact patterns.
Tom Casciato:

Professor Aliza Kaplan leads the Ramos Project at the Criminal Justice Reform Clinic at Portland’s Lewis & Clark law school. She notes Oregon’s provision arose out of an early 20th-century era in which the Ku Klux Klan had a strong presence in Portland and throughout the state.
Tom Casciato:

The stereotype is that Portland is a progressive paradise, and there are some people who would be surprised to hear you talk about a major Ku Klux Klan presence in Portland.
Aliza Kaplan:

I think that there’s a misconception in general about our history. At that time in Oregon, we had a huge influx of both Eastern European Jews and Catholics.
Tom Casciato:

There was also a backlash following a sensational Oregon trial in 1934, in which a Jewish defendant, Jacob Silverman, avoided a second-degree murder conviction by a vote of 11-1. The state’s leading newspaper, The Morning Oregonian, editorialized about “mixed-blood jurors” and complained of “the vast immigration into America from southern and eastern Europe.”

It all led to a ballot measure that amended the state constitution to allow 10-2 jury verdicts.

Fast forward to the 2020 Supreme Court decision in Ramos.

In his majority opinion, Justice Neil Gorsuch wrote “Though it’s hard to say why these laws persist, their origins are clear.” Louisiana’s practice was rooted in “the trappings of the Jim Crow era.” And Oregon’s “can similarly be traced to the rise of the Ku Klux Klan.”

But even though history has reached an inflection point, the non-unanimous jury story isn’t over quite yet. The convictions of those who haven’t yet exhausted the appeals process are vacated, and they’re entitled to be retried.

But what about those with final convictions, imprisoned following 10-2 or 11-1 votes? The Supreme Court hasn’t ruled yet whether Ramos applies retroactively to them, though it’s expected to later this year in a case called Edwards v. Vannoy.

In the meantime, Kaplan and the Criminal Justice Reform Clinic, along with legal colleagues working for free, are challenging dozens of those convictions in Oregon state court. But it’s not always easy figuring out which cases to challenge.
Aliza Kaplan:

Unfortunately, Oregon has never maintained any record of who has a non-unanimous or unanimous conviction. What about in cases where the lawyer told their client you’re never going to be successful at trial, so take this plea deal. We have non-unanimous juries. You’re a Black man, you don’t have a chance. So you should take this plea deal. That happened a lot here, too. And that’s really hard to prove.
Tom Casciato:

Oregon Attorney General Ellen Rosenblum applauded Ramos, calling split-jury verdicts “an embarrassment to our otherwise progressive state.”

But she has filed a Supreme Court brief in the Edwards case stating Oregon “…has a compelling interest in the finality of its convictions,” and retroactivity would have “a significant impact on crime victims and requires retrials years after the fact when key evidence may be gone.”

In Louisiana, the state has given a deadline to those wishing to contest their non-unanimous convictions, an estimated 1,600 of them. They have until April 20th of this year, one year since the Ramos decision.

Some 340 of those are in New Orleans Parish, where recently elected District Attorney Jason Williams is addressing them with what he calls the Undoing Jim Crow Juries Civil Rights Initiative.

This, as the Promise of Justice Initiative has been inundated with requests from others hoping to file to have their own cases reconsidered. The small organization is managing to represent some 850 of them with volunteer help from some 700 lawyers across the country.
Tom Casciato:

And even with all that assistance from other attorneys, is it possible you all will not be able to file on behalf of each of those men and women who were convicted by non-unanimous juries?
Jamila Johnson:

I think it is certain that a certain percentage of people will not be able to file before the deadline.
Tom Casciato:

Keith Amedee is one of those who has filed. Though he’s already out of prison, he’s not yet out of the woods.
Keith Amedee:

I would love to get from under this parole. I’m on parole to 2072. I got to pay parole fees.
Tom Casciato:

His latest part-time job is at a local dollar store. He also has his employment credentials online. And he has a message about non-unanimous juries.
Keith Amedee:

My hope is for the United States Supreme Court to rule these cases where we can eliminate this.
Tom Casciato:

Even retroactively.
Keith Amedee:

Right.