Six years ago, Louisianans were weighing the merits of requiring juries to arrive at unanimous verdicts, then the law in every other state save for Oregon.
The most vocal opposition to the idea came from district attorneys, some of whom warned that a slew of hung-jury verdicts would result if Louisiana stopped allowing convictions on 10-2 or 11-1 votes.
Louisiana voters didn’t think much of the argument: The measure to require unanimity passed by a nearly two-thirds margin. More than a thousand jury trials have taken place in the state in the years since.
Data about those trials compiled by The Times-Picayune and The Advocate shows that the tsunami of mistrials resulting from juries that couldn’t agree never materialized. In fact, the rate of hung-jury verdicts hasn’t budged at all in the years since voters changed the law.
The newspaper asked district attorneys and clerks of court in Louisiana’s busiest judicial districts for a list of jury trials since the law went into effect. Seven of them, together accounting for more than half the trials conducted in the state each year, complied.
According to the analysis, those districts have tried at least 542 cases before 12-member juries. Just 4.4% of those juries – 24 in total – couldn’t agree on a verdict on at least one charge.
A similar but larger analysis, conducted by the newspaper before the law was changed, found a hung-jury rate of 4.6%. That survey included nearly 2,000 cases tried before 12-member juries between 2011 and 2016.
The difference in the rate of hung juries before and after unanimity was required is statistically insignificant. Essentially, it’s identical.
That doesn’t mean the change in the law hasn’t had any effect on the justice system. Prosecutors and defense attorneys say it’s had a range of impacts: Longer deliberations. More cautious jury selection. In some cases, more fulsome plea discussions. And perhaps more “compromise” verdicts, with juries convicting defendants on less serious charges when unanimity on the stiffest charge is elusive.
“I don’t think it’s really changed that much,” said James Stewart, the longtime district attorney in Caddo Parish. “We were always taught to try and get 12 out of 12 because you never know who’s on that jury. Now, we’re maybe a little more careful in jury selection, because you can’t afford a mistake.”
Stewart, a former judge, was an outspoken supporter of changing the law back in 2018. He believed Louisiana should do things like the rest of the states, and he wasn’t very worried about a spike in hung juries.
His lack of concern on that point was well-founded. In Caddo Parish, just two out of 131 cases tried by the end of last year and after the new rule was in effect have resulted in hung verdicts, according to a list of cases provided by the district attorney.
“For jurors, knowing they’ve got to have 12 of 12, I think the difference is they have to spend more time discussing the evidence than they used to,” Stewart said. “And I think that mostly works out for the best.”
A slow beginning
Louisiana’s new unanimity law was passed by voters in late 2018, and it took effect Jan. 1, 2019.
But it only applied to trials involving crimes committed after the law went into effect. Because of the typical lag time between the commission of a crime and a trial, very few 2019 trials applied the new standard.
The change wasn’t fully imposed until the Supreme Court issued its blockbuster ruling in Ramos v. Louisiana on April 20, 2020. That decision upended a 1972 ruling that found split jury verdicts were constitutional.
From that day forward, all jury verdicts in Louisiana have had to be unanimous, regardless of when the crime at issue was committed. The Ramos decision was not retroactive, meaning hundreds of Louisiana inmates are still serving sentences meted out in cases with split jury verdicts.
But Ramos did apply to cases that had not gone through final appeals, and that led to scores of relatively recent cases having to be retried because the original verdict was not unanimous. That number included dozens of cases that had been tried, but not settled unanimously, after voters passed the new law.
In the jury room
It’s impossible to say definitively how the unanimity rule has affected deliberations, since every case is different and discussions occur behind closed doors.
But prosecutors and defense lawyers interviewed for this story said they are sure that deliberations are taking longer. They speculate that in many cases, the juror or jurors listed as holdouts under the old system are now being persuaded to join the majority.
That’s what happened in the case of Kevin Tasker, a Baton Rouge man who killed a friend in a 2020 argument. Tasker, who was charged with second-degree murder, admitted shooting his friend, but said he acted in self-defense as the two tussled on the pavement.
The East Baton Rouge Parish jury deliberated for nearly two hours, and came out to ask a question of the 19th District Judge Fred Crifasi about the differences between second-degree murder and manslaughter.
A half-hour later, the jury returned a manslaughter verdict. In an interview with The Advocate, forewoman Megan Varnado said 11 jurors had settled on manslaughter fairly quickly, but one woman felt a murder verdict was more appropriate.
Varnado, whose account was echoed by a second juror, said the jury’s decision stemmed in part from its view that the case was complicated — the killing wasn’t premeditated, and the men had been fighting. Jurors knew murder meant life without parole, while manslaughter gave the judge wide discretion: anything from 0 to 40 years.
“There was such a difference in the sentences — mandatory life for murder, whereas in manslaughter, the judge can say, ‘This is what I think of it,” Varnado said. ““We felt comfortable that judge would get in there and give him an appropriate sentence. We felt like he would have a really good feel for how much time this guy deserved.”
In the end, the reluctant juror came around. Crifasi later sentenced Tasker to 30 years.
'I don't have that luxury anymore'
Michael Kennedy, a New Orleans defense lawyer, said he’s seen similar impacts from the new law.
It’s led to more considered deliberations, he believes. But hopes on the defense bar that lonely voices for acquittal would sometimes win over a whole panel – as in “Twelve Angry Men” – have rarely been realized, Kennedy said.
“It was rare in the old system that you got a 12-0 conviction, and we were hoping that the one or two would hold fast, and you’d not get a conviction,” Kennedy said. “But that hasn’t really happened.”
On the other hand, he and many other lawyers think such disagreements in the age of unanimity have led to more compromise verdicts – usually, a conviction on a lesser charge.
The new law “does lend itself to more compromise verdicts,” said New Orleans defense lawyer John Fuller. “Whether that’s always a good thing for a defendant is hard to say,” he added, noting that the result of a “compromise” is still often a lengthy prison stay.
Scott Perrilloux, the longtime district attorney for the 21st Judicial District, which includes Tangipahoa, Livingston and St. Helena parishes, said he believes the changed law has given defendants a better bargaining position in plea negotiations.
“There was a day where there was two jurors I didn’t have to get,” Perrilloux said. “I don’t have that luxury anymore.”
Don Burkett, the veteran district attorney for Sabine Parish and one of the leading voices in opposition to the unanimity law back in 2018, said he’s made his peace with things.
“Getting 12 people to agree on anything is so difficult in today’s world,” Burkett said. “I always felt like 10 out of 12 ... if that’s not beyond a reasonable doubt, what is? But I lost that argument, and I’m OK with that.“
