Louisiana looks to shed vestige of Jim Crow

In 48 states it takes a unanimous vote from a jury to convict a person accused of committing a criminal act. And, if you think about it, that makes sense given the burden of proof placed upon the state in a criminal trial. Oregon is the only other state that does not require a unanimous verdict -- unless the defendant is charged with murder.

Today in Louisiana, voters will be asked to decide if Louisiana wishes to join the vast majority of states in requiring a unanimous jury vote for a conviction; or if the Pelican State wishes to preserve one of the last overt tools of the Jim Crow era. Louisiana is the only state in which a defendant can be sentenced to life in prison on less than a unanimous verdict.

The so-called "split jury" was written into the Louisiana constitution in 1898 when a constitutional convention was called after the end of Reconstruction.

"It put into place a number of measures in order to — this is a quote from the convention itself — 'to maintain the supremacy of the white race.'"

-- Andrea Armstrong, Professor, Loyola University

The driving force behind the provision was to preserve a system of unpaid labor for white landowners. At the time of the convention, Louisiana had a policy of leasing out convicts for private businesses. The split-jury provision preserved the pool of free labor and made it easier for the state to convict and imprison black men.

The state Attorney General and local prosecutors are opposed to the constitutional amendment because it would make it harder for them to obtain convictions and it would take away some of their leverage when it comes time to plea bargaining. Of course, local prosecutors claim that they just want an efficient criminal (in)justice system and they don't want to have to worry about the time and expense involved in re-trials.

Well, tough shit, Mr. Prosecutor. You are doing your best to defend a system that denies millions of people due process. You are defending a system that is a hold-over from the days of Jim Crow and that was enacted specifically to keep a thumb on black people.

The coalition behind the ballot measure has made for very strange bedfellows with the measure passing the Republican-controlled state legislature with a better than 2/3 majority. George Soros and the Koch brothers have also put their money behind the measure.

If you live in Louisiana and haven't yet voted, please vote Yes on 2.

Fighting to keep innocent men behind bars

Over in Kentucky we have the latest example of a prosecutor forgetting that seeking justice, not obtaining convictions, is his ethical duty.

Keith Hardin and Jeffrey Clark were convicted of the murder of Rhonda Sue Warford in 1995 in a case that involved allegations of satanic worship and animal sacrifice. Ms. Warford was 19 years old when she complained that an old man had followed and harassed her. Three days later she was found dead, with 11 stab wounds.

Mr. Hardin and Mr. Clark contested their convictions for 21 years - finally winning a reprieve in 2016.

After DNA testing - which prosecutors fought against - proved that a hair found at the scene matched neither Mr. Hardin nor Mr. Clark and that blood found on a washcloth belonged to to Mr. Hardin and no one else.

After Judge Bruce Butler's ruling, Assistant State Attorney General Perry Ryan decided that he wasn't going to let the pair walk away. He refiled murder charges and added charges of perjury and kidnapping.

Last month, Judge Butler ruled that Mr. Ryan had brought the new charges up without merit and that they were filed in a spirit of vindictiveness. The judge called out Mr. Ryan by name and stated that the new charges were filed solely because Mr. Hardin and Mr. Clark had the nerve to contest their convictions.

“This is clear and actual vindictive prosecutorial action." -- Judge Bruce Butler

Our criminal (in)justice system is deeply flawed. Trials aren't conducted to determine what happened and who did it, they are a contest between competing narratives that may or may not have any tangible connection to the truth. Prosecutors treat a jury verdict of guilty as concrete proof that their theory of the case was correct - an acquittal is viewed as a miscarriage of justice.

But juries aren't perfect and verdicts aren't, and shouldn't be, sacrosanct. A jury isn't given all the information related to an incident. Evidence on both sides is excluded for various reasons. Evidence isn't tested by independent labs. Testimony from eyewitnesses is held up as proof even though there is mounting evidence that eyewitness testimony is unreliable due to a number of factors.

The point is that just because a jury comes back with a guilty verdict, that doesn't, in and of itself, make it correct. Sometimes it's because exculpatory evidence has been intentionally withheld. Sometimes it's because crime labs don't have the time, money or manpower to conduct tests on evidence. Sometimes it's because juries don't understand what beyond a reasonable doubt means. And sometimes it's because the trial strategy of the defense went all pear-shaped.

The murder charge against Mr. Hardin and Mr. Clark should be dismissed because the evidence supporting the prior convictions has been discredited. But that would mean the police and prosecutors would have to admit that they went after the wrong men. They would have to admit that for 21 years, two innocent men sat in prison while the real killer (or killers) went free. Such an admission might give rise to a little better understanding of beyond a reasonable doubt for area jurors.

Mr. Ryan has fought justice in this case for years because he doesn't want to have to go out and put in the work to determine who really killed Ms. Warford. It's much easier to take the transcript of the previous case and go right back down the line than it is to conduct an investigation more than 20 years after the crime.

Maybe had the police done their job better back in 1995 two innocent men wouldn't have spent 21 years behind bars for a crime they didn't commit. Maybe the person responsible for the murder would have been there, instead.

Ignorance is disgusting

Last week Donald Trump once again displayed his ignorance about how the criminal (in)justice system works in this country when he tweeted out that the verdict in the trial over Kate Steinle's murder was disgraceful. Attorney General Jeff Sessions opened his mouth and displayed his ignorance when he proclaimed that the murder was the result of San Francisco's status as a sanctuary city for immigrants.

Jose Ines Garcia Zarate was acquitted of the charge of murder in a month-long trial in San Francisco, though he was convicted of being a felon in possession of a firearm.

Now, I don't recall Mr. Trump expressing any outrage at jury verdicts in which police officers were acquitted for killing unarmed an unarmed black man. Quite the opposite, he was quite happy. We can all be angry at a jury for the decision they made but, unless you were in the jury, your view of the case can be quite warped.

Mr. Trump seemed upset that the jury was not told that Mr. Garcia Zarate had crossed the border illegally five times. Well, I've got news for you, Mr. President, such a fact is inadmissible in a murder trial. You see Mr. Garcia Zarate was tried for the specific offenses related to the death of Ms. Steinle and, therefore, the only evidence the jury heard was related to those offenses. You see, Mr. President, in this country (as flawed as our criminal (in)justice system is) we try folks on the evidence related to the crime with which they are charged.

Were the jury to have heard evidence regarding Mr. Garcia Zarate's immigration status they may have made a decision based on something other than the evidence regarding Ms. Steinle's death. They may have been asked to convict a man for murder for no other reason than he wasn't born in this country.

Now that would have been a disgusting verdict.

A jury doesn't hear all the evidence because some of it, sometimes a lot of it, isn't relevant to the case at hand. It is not uncommon for a jury to be excused from the courtroom while the attorneys argue over the admissibility of evidence before the judge. Those reading the newspaper or watching the news (or in attendance) are then made privy to information the jury never heard and will never consider.

The jury that heard the case wasn't trying to make any political statements. Their sole duty was to hear the evidence presented and to make a decision as to whether or not the government had proven their case(s) beyond a reasonable doubt. Just because a jury acquits a person doesn't mean they don't think a crime occurred. It means, instead, that they have more than a reasonable doubt, based on the evidence presented, that the government proved its case.

The jury's job isn't to convict someone - and it isn't to acquit someone. You may think a jury got it wrong, but that is how we decide cases the parties cannot work out on their own. And, in a murder case, sometimes the hardest thing to prove is that the actions of the defendant were intentional. And even though motive is not a required element of a murder case, the absence of a motive can raise reasonable doubt in the mind of a juror.

So, Mr. President, the jury's verdict wasn't disgusting. It was what it was. Using your bully pulpit to try to intimidate future jurors is disgusting.

And as for Mr. Sessions, you took an oath to uphold the Constitution and to seek justice. You're not happy with the verdict. Okay, I get that. However, threatening to file federal charges against Mr. Garcia Zarate is not seeking justice. It is called vindictiveness.

Testing the presumption of innocence

Why is that whenever someone discusses the verdict in the Casey Anthony case they must preface their comments by stating that they think she was guilty? I was in the elevator at the Criminal (In)justice Center this morning and one of my fellow attorneys said, in reference to the verdict, that you should never allow the facts (or the law) to get in the way of a good case. He thought Ms. Anthony did it.

My colleague Murray Newman posted on his blawg that he disagreed with the jury. He said he thought the jury was "gutsy" in acquitting Ms. Anthony. In his other blawg (for Houston's leading source of misinformation), Mr. Newman noted that even though he hadn't sat through the trial, he felt Ms. Anthony was guilty. 

I didn’t watch a single minute of the Casey Anthony trial.

I didn’t watch any of the testimony live.  I didn’t watch a nightly recap.  I certainly didn’t listen to Nancy Grace prattling on as if she were God’s chosen mouthpiece to all things related to criminal justice.

My knowledge of the trial was nothing more than what I heard in passing.  I had only a thumbnail sketch of the accusations and the evidence.  Maybe I’m crazy, but I don’t like going over the details of a child’s death unless I absolutely must.

But based on what little I knew of the case, Casey Anthony sure sounded pretty guilty to me, though.  Where there is smoke there surely must be fire and circumstantial evidence is still evidence at the end of the day, right?

I didn't watch any of the trial either. I didn't watch any of the nightly prattle that passed as "analysis." Hell, I didn't even know who Casey Anthony was until Brian Tannebaum, Scott Greenfield and Mark Bennett wrote about attorneys who were either commenting on the case or paying a p.r. flack to get themselves on television as commentators.

I don't know how Caylee died. I don't know if Ms. Anthony had anything to do with it. I don't know if her father had anything to do with it. And neither does anyone else who didn't sit on that jury and listen to the evidence that was placed before them.

The public made up its mind based on the mindless blabbering of Nancy Grace and her minions. If you weren't on the jury then you got to hear all sorts of stuff that wasn't allowed in the courtroom. You heard "evidence" that wasn't relevant or was deemed too prejudicial.

Ms. Anthony was innocent the day she was arrested. She was innocent the day she was arraigned. She was innocent the day the jury was sworn in. And because the government's lawyer couldn't prove his case beyond all reasonable doubt -- she is still innocent.

That's what the presumption of innocence is all about.

It's not about whether she got away with something or whether someone thinks she did it. The state failed to prove she had anything to do with the death of her daughter.

I am very happy today that there were twelve men and women who understood the concept and the idea of the presumption of innocence. I am happy that there were twelve men and women who held the government's feet to the fire and forced them to prove up the elements of their case. I am happy that there were twelve men and women who didn't just "add up" the evidence and decide Ms. Anthony was guilty. I am happy that there were twelve men and women who understood just what it means to presume another person is innocent unless prove guilty beyond all reasonable doubt.

No one criticizes juries who convict innocent people. No one criticizes juries who find people guilty despite a paucity of evidence. No one criticizes juries who ignore the presumption of innocence or who hold a defendant's silence against him.

But heaven forbid a jury do its duty.

Being thankful

For all of its faults, our criminal (in)justice system does have one saving grace -- trial by jury. I am thankful I live in a country in which we have the right to have a jury of our peers decide our fate after a careful consideration of the evidence presented to them.

As Atticus Finch told the jury during his closing argument in To Kill a Mockingbird, the jury system is the great leveler of men in this country. No matter our station in life, no matter where we were born, no matter where we live and no matter what we do for a living, we all stand before the court equal.  We all stand before a jury of our peers who will decide our fate.

To begin with, this case should never have come to trial. The State has not produced one iota of medical evidence that the crime Tom Robinson is charged with ever took place. It has relied instead upon the testimony of two witnesses whose evidence has not only been called into serious question on cross examination, but has been flatly contradicted by the defendant. Now there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led, almost exclusively, with his left. And Tom Robinson now sits before you, having taken “The Oath” with the only good hand he possesses – his right.

I have nothing but pity in my heart for the Chief Witness for the State. She is the victim of cruel poverty and ignorance. But, my pity does not extend so far as to her putting a man’s life at stake, which she has done in an effort to get rid of her own guilt. Now I say “guilt,” gentlemen, because it was guilt that motivated her. She’s committed no crime. She has merely broken a rigid and time-honoured code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She must destroy the evidence of her offense. But, what was the evidence of her offense? Tom Robinson, a human being. She must put Tom Robinson away from her. Tom Robinson was to her a daily reminder of what she did.

Now what did she do? She tempted a negro. She was white and she tempted a negro. She did something that in our society is unspeakable: She kissed a black man. Not an old uncle, but a strong, young negro man. No code mattered to her before she broke it, but it came crashing down on her afterwards.

The witnesses for the State, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen – to this Court – in the cynical confidence that their testimony would not be doubted; confident that you gentlemen would go along with them on the assumption, the evil assumption, that all negroes lie; all negroes are basically immoral beings; all negro men are not to be trusted around our women, an assumption that one associates with minds of their calibre, and which is in itself, gentlemen, a lie – which I do not need to point out to you.

And so, a quiet, humble, respectable negro, who has had the unmitigated TEMERITY to feel sorry for a white woman, has had to put his word against two white people. The defendant is not guilty. But somebody in this courtroom is.

Now, gentlemen, in this country our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality!

Now I am confident that you gentlemen will review without passion the evidence that you have heard, come to a decision, and restore this man to his family.

In the name of God, do your duty. In the name of God, believe Tom Robinson.