'Jim Crow's Last Stand' In Louisiana May Fall To Ballot Measure

Nov 4, 2018
Originally published on November 5, 2018 4:11 am

In 1975, Norris Henderson went on trial for second-degree murder as a 19-year-old in New Orleans. He thought he was a free man when there were two holdouts on the jury.

"Watched Perry Mason all my life," he says. "Okay, 10-2, I'm outta here."

But he was mistaken. Louisiana has a split-jury system that only requires 10 of 12 jurors to return a guilty verdict.

"Sheriff put the handcuffs on me and took me to the back," Norris recalls. "I was like, 'Something ain't right.' "

Henderson spent the next 27 years in prison until a judge released him.

Now, he's leading a coalition to push for unanimous juries. Louisiana voters will decide the matter Tuesday when there's a constitutional amendment on the ballot to repeal the Jim Crow-era law that allows for split juries.

"This is Jim Crow's last stand," Henderson says.

The split-jury system is a vestige of Louisiana's 1898 constitution, adopted in the period after the Civil War when slavery was abolished.

Henderson says when former Confederates regained power after Reconstruction, they created a system to more easily ensnare free black people.

"They realized the only way we're going to disenfranchise all these African-Americans and be able to get this free labor, you know, we have to devise a way," Henderson says. "And this is what they concocted."

At the time, the state would lease convict labor to private landowners.

Historians and legal scholars say the intent was clear.

"That constitutional convention is really interesting," says Andrea Armstrong, a law professor at Loyola University in New Orleans.

"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.'"

Armstrong says the legacy of the non-unanimous jury is evident today in racial disparities in the criminal justice system of Louisiana, which has the second highest incarceration rate in the country.

"I would certainly say that African-Americans are disproportionately impacted by this split-jury law," says Armstrong. "What I think is also interesting, though, is this law allows the district attorney to have more leverage in terms of plea deals, in terms of the charges that they make."

The only other state that does not require a unanimous jury is Oregon, and even there, all 12 jurors must agree for murder convictions.

"Louisiana is the only state in the United States where someone can be sentenced to an automatic life without parole based on the votes of 10 out of 12 jurors," Armstrong says.

The campaign

At the Unanimous Jury Coalition campaign headquarters in New Orleans, canvassers are reviewing maps and getting ready to deploy in teams of two — a door knocker and a driver.

Campaign worker Janice Long says this door-to-door work is about educating voters.

"A lot of people have not even heard of it," says Long.

She finds people don't realize Louisiana does not already require unanimous jury verdicts.

"When I explain it to them what it is, they say 'I thought that's the way it was.' No, it is not," Long says.

There's no organized opposition to the constitutional amendment. But the state attorney general's office has said the split-jury law makes for quicker and easier administration of the criminal justice system, and some local prosecutors are speaking out in favor of the current system.

"I'm going to be voting no," says Scott Perrilloux, District Attorney for Louisiana's 21st Judicial District, made up of Livingston, Tangipahoa, and St. Helena Parishes.

"Why would I support a change in the law which in my opinion will make it more difficult to achieve a just result?"

Perrilloux says his position is about achieving swift justice, not adding up convictions.

"I think there will be some mistrials and hung juries that will result in you know more work and additional time, delayed justice for victims and their families," he says.

The Louisiana District Attorneys Association has remained neutral on the constitutional amendment. But all kinds of advocacy and political groups have lined up on the side of unanimous juries — criminal justice reformers, civil rights groups, conservative religious organizations, even gun rights supporters.

Republican state representative Blake Miguez is featured in an ad sponsored by the Louisiana Republican Judiciary PAC.

"Here in Louisiana we don't take our rights for granted," Miguez says in the ad. "Our rights to bear arms, our rights to worship, our rights to live free and to raise our families the way we see fit."

Miguez is a champion handgun shooter shown taking target practice, as he explains his support for the constitutional amendment.

"No jury of our peers should be able to take those rights away from any of us if there's reasonable doubt. That means their decision should be 100 percent unanimous," he says in the ad.

The issue has made for strange political bedfellows in Louisiana, a state with a Democratic governor and a Republican-led legislature. The bill putting the unanimous jury amendment on the ballot had to pass with a two-thirds supermajority.

"When we had conservatives and liberals in the legislature who hardly ever agree on anything come together to support something like this — that was truly historic," says Alexandria attorney Ed Tarpley, a former DA and a Republican who lobbied for the change.

The state's Republican and Democratic parties are behind the amendment and outside financial support for the campaign has come from both liberal philanthropist George Soros (Soros' Open Society Foundations has been among NPR's recent financial supporters) and from the conservative Koch Brothers.

"It's about liberty, justice and fairness," says Tarpley. "And look, how can you be opposed to liberty?"

Tarpley says the split-jury rule has "hung like a cloud over the criminal justice system for decades."

He's been doing the civic lunch circuit to speak in favor of unanimous juries, which he says are deeply rooted in American culture, dating to the framers of the Constitution.

"The unanimity of the jury has always been a crucial and a central part of the jury trial protection," says Tarpley. "In fact, John Adams, who was the second president, said that it's the unanimity of the jury that preserves the rights of mankind."

Tarpley says Tuesday's vote represents a watershed moment for Louisiana.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

LULU GARCIA-NAVARRO, HOST:

There are many issues on the ballot this Tuesday. And in Louisiana, voters will decide whether to require a unanimous jury verdict for criminal convictions. A proposed state constitutional amendment would repeal a Jim Crow-era law that allows 10 out of 12 jurors to return a guilty verdict. Here's NPR's Debbie Elliott.

DEBBIE ELLIOTT, BYLINE: In 1975, Norris Henderson went on trial for second-degree murder in New Orleans. He thought he was a free man when there were two holdouts on the jury.

NORRIS HENDERSON: You know, being 19 years old, it's like, watched "Perry Mason" all my life and realized that, OK, 10-2, I'm out of here.

ELLIOTT: He was mistaken.

HENDERSON: Sheriff put the handcuffs on me and took me to the back. I was like, something ain't right.

ELLIOTT: The sheriff put the handcuffs on, and Henderson spent the next 27 years in prison until a judge released him. Now he's leading a coalition to push for unanimous juries.

HENDERSON: This is Jim Crow's last stand.

ELLIOTT: The split-jury rule is a vestige of Louisiana's 1898 Constitution, adopted in the period after the Civil War when slavery was abolished.

HENDERSON: During Reconstruction, they realized only way we going to disenfranchise all these African-Americans and be able to keep this free label - we have to devise a way. And this is what they concocted.

ELLIOTT: At the time, the state would lease convict labor to private landowners. The intent was clear, says Andrea Armstrong, a law professor at Loyola University in New Orleans.

ANDREA ARMSTRONG: That constitutional convention is really interesting because it put into place a number of measures in order to - and it - this is a quote from the convention itself - "to maintain the supremacy of the white race."

ELLIOTT: Armstrong says the legacy of that today is seen in racial disparities in the criminal justice system of Louisiana, which has the second-highest incarceration rate in the country.

ARMSTRONG: I would certainly say that African-Americans are disproportionately impacted by this split-jury law. What I think is also interesting, though, is this law allows the district attorney to have more leverage in terms of plea deals, in terms of the charges that they make.

ELLIOTT: The only other state that does not require a unanimous jury is Oregon. And even there, all 12 jurors must agree when it comes to murder. At the coalition campaign headquarters in New Orleans, canvassers are getting ready to deploy.

UNIDENTIFIED PERSON: Just take a look at your maps. You might want to do a driver and a door-knocker in some cases, which is also...

ELLIOTT: Janice Long says this door-to-door work is about educating voters.

JANICE LONG: A lot of people have not even heard of it.

ELLIOTT: So they don't really realize that you don't have to have a unanimous jury?

LONG: Well, when I explain to them what it is, they say, well, I thought that was the way it was. No, it is not.

ELLIOTT: There's no organized opposition to the amendment, but some local prosecutors are speaking out.

SCOTT PERRILLOUX: Why would I support a change in the law which, in my opinion, will make it more difficult to achieve a just result? - justice, not convictions but justice.

ELLIOTT: Scott Perrilloux is the district attorney for Livingston, Tangipahoa and St. Helena parishes.

PERRILLOUX: I think there'll be some mistrials and hung juries that will result in, you know, more work and additional time, delayed justice for victims and their families. And for that reason, I'll be voting no.

ELLIOTT: But all kinds of advocacy groups are saying yes - criminal justice reformers, civil rights groups, even gun rights supporters.

(SOUNDBITE OF POLITICAL AD)

BLAKE MIGUEZ: Here in Louisiana, we don't take our rights for granted - our rights to bear arms, our rights to worship...

ELLIOTT: This ad features Republican State Representative Blake Miguez, a champion handgun shooter, at target practice.

(SOUNDBITE OF POLITICAL AD)

MIGUEZ: And no jury of our peers should be able to take away these rights from any of us if there is reasonable doubt. That means their decision should be 100 percent unanimous.

ELLIOTT: It's made for strange political bedfellows. Republicans and Democrats are behind the amendment. Outside financial support has come from both liberal philanthropist George Soros and the conservative Koch brothers. Lawyer Ed Tarpley is a former Republican DA who lobbied for the change. He says the guarantee of a unanimous jury is deeply rooted in American culture.

ED TARPLEY: In fact, John Adams, who was the second president, said that it's the unanimity of the jury that preserves the rights of mankind.

ELLIOTT: Tarpley says Tuesday's vote in Louisiana is a fundamental question of liberty. Debbie Elliott, NPR News, New Orleans. Transcript provided by NPR, Copyright NPR.