In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Senate bill looks to change Louisiana law on non-unanimous jury verdicts

Jury box
A bill moving through the Louisiana legislature could change the way juries in felony cases reach a verdict.

Senate bill 243, authored by Sen. J.P. Morrell (D-New Orleans), would require unanimous verdicts in felony cases. As the law stands now, only 10 of 12 jurors need to agree. Louisiana is 1 of only 2 states that don't require a unanimous decision, Oregon being the other. But, it's the only state that allows a 10 out of 12 vote in murder cases, with the exception of death penalty trials.

"I just made it a personal commitment that I would do everything I could to see that this law was repealed," said Ed Tarpley, a former district attorney in Grant Parish and a current criminal defense attorney in Central Louisiana.

After 35 years practicing law, Tarpley said it took a book called "Jim Crow's Last Stand" to open his eyes to the origins of the state's non-unanimous jury verdict law.

"This was something that was shameful and disgraceful that Louisiana had a law like this and that it affected the lives of thousands and thousands of people," he said.

Last week, Tarpley testified in favor of SB 243, that would require unanimous verdicts in felony cases. As the law stands now, you can be convicted of a felony, or acquitted for that matter, in Louisiana if 10 out of 12 jurors say so.

A house committee unanimously supported the bill last week. It was a shock given that the bill has been opposed by nearly all of the district attorneys in the state.

"When the vote was called for and the chairman asked if there was any opposition and there was no opposition, we were stunned," said Tarpley.

Tarpley's argument is that the current law has Jim Crow era origins. In the debate over the state's 1974 constitution, no argument about the law was made about race. Instead, the debate focused on judicial efficiency and it was ultimately adopted by the people.

One of the district attorney's who has been vocal against the bill is John DeRosier of Calcasieu Parish. Loren Lampert, the former chief of police of the Alexandria Police Department and a longtime prosecutor, is his administrative 1st assistant district attorney. He also does specialty prosecution around the state.

"The problem that I have right now is that there is absolutely no empirical evidence to suggest that unanimity equates to reliability of verdicts," said Lampert. "I think we can get there. I think we can do independent, objective study of that and analysis of the data that exists."

Lampert emphasized to us that only 12 convictions since the current law was adopted in 1974 have been reversed for a lack of sufficient evidence. And, in 9 of those 12 cases, it was a unanimous verdict.

"The origins of this, it's horrible. There is no way to soften that blow," he said. "I'm as empathetic as I can be and I really acknowledge that and I'm not trying to diminish that in any way whatsoever. If this is a way to fix that, and the public decides that is the case, I'm for that as well."

Lampert hopes the debate focuses on the substance of reliable verdicts.

"I think if the data were to come out and show that unanimity in any substantial way improves reliability, not only would I not oppose that bill personally and individually, I'm speaking for myself, I would support it because I have that much faith in our system. It's the best system on the planet," he said.

He also points out that non-unanimous jury verdicts often help avoid things like costly re-trials that come if there are hung juries.

"I do think as good stewards we need to understand the data and know what it's going to cost," he said. "It's going to be a significant increase in the cost of a trial and length of a trial and the length of deliberations. But, if it does equate to reliability, then we should be willing to spend that money gladly. We just don't know the answer to that question."

Meanwhile, Tarpley argues that it's a prosecutor's responsibility to get a conviction by a jury beyond a reasonable doubt: "How can you say a person has been convicted beyond a reasonable doubt when one or two people on the jury still have doubt?"

The next step for the bill is to clear the full house by a 2/3 margin. It would then head back to the senate. If it passes the full legislature, you'll be asked to vote on it as a constitutional amendment in the fall.

We reached out to our local district attorneys in Central Louisiana for their thoughts on the bill.

Avoyelles Parish District Attorney Charles Riddle told us he will support a unanimous jury verdict system, but would also like to give prosecutors the option to require a jury. In other words, if a defendant can waive a jury trial, the state should be able to require one.

Grant Parish District Attorney Jay Lemoine gave us this statement: "If unanimous jury verdicts are actually more reliable, we must insist that we have them. If Louisiana's role in reconstruction and the racism that occurred during that time is the only factor to consider in whether split verdicts can stand, then they must fall.

Currently, we only have anecdotal evidence and unscientific studies that are put forward supporting this change. Unanimous verdicts do not necessarily increase the reliability of verdicts, and allows one holdout to nullify the jury. I support the study of reliable and empirical evidence, and until that shows that unanimous jury verdicts are unreliable, I oppose the move to require unanimous jury verdicts on all felony cases."

Rapides Parish District Attorney Phillip Terrell gave us this statement: "On the one hand, the burden of proof the state must bear is beyond a reasonable doubt. It has clearly been held by the United States Supreme Court that the 10-2 verdict is not unconstitutional. Many argue that a public safety issue would arise if the more erroneous burden of unanimous verdict were placed upon the prosecution.

On the other hand, the origins of the 9-3 or 10-2 verdict clearly arose in our state during Jim Crow and any reading of the 1878 Constitutional Convention minutes and comments makes clear the racial intentions of the framers.

It is suggested by some cooler heads that the matter be referred to the Louisiana Law Institute for research and recommendation. However, this office will certainly live with the wishes of the people if there is a vote to change the Louisiana Constitution."

Calls for comment to Vernon Parish District Attorney Asa Skinner's office were not returned.

Source: KALB news, May 2, 2018

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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning