IN 1983, a jury convicted

Archie Williams for the

1982 rape and stabbing of a woman in her home in Baton Rouge, La. No physical evidence tied Williams to the crime, but 11 of the jurors were persuaded that Williams was the assailant based on the victim’s testimony. A lone juror disagreed.



At the time, the 11–1 vote would have resulted in a hung jury in 48 states—Louisiana and Oregon being the only exceptions—and Williams would have been entitled to a retrial.

However, Louisiana’s law permitted non-unanimous jury convictions in any case where prosecutors were not seeking the death penalty. Williams was eventually exonerated and released in 2019, after fingerprints found at the crime scene decades earlier were matched to another person, a convicted serial rapist.

Last year, Louisiana’s voters abolished the non-unanimous jury practice after a spirited campaign about the system’s grievous failures. But the changed law applies only to felonies committed starting this year. It doesn’t help the hundreds of people in prison who were convicted by non-unanimous juries prior to Jan. 1, 2019.

On Monday, the Supreme Court considered a challenge to the constitutionality of the old law in the case of Evangelisto Ramos, who was convicted of a 2014 murder. Only 10 of 12 jurors voted to convict Ramos, the minimum needed for a conviction in Louisiana. A judge sentenced him to life in prison without the possibility of parole.

The Louisiana statute that permitted the non-unanimous jury convictions has an appalling history, as does Oregon’s similar statute.

After the Civil War, African Americans started to serve on juries in significant numbers for the first time. But the backlash that followed Reconstruction essentially dismantled all rights guaranteed by the 13th, 14th and 15th Amendments to the Constitution.

In 1895, a white Louisiana judge alleged that when African Americans were included on juries, “there was no possibility of just verdicts.” Three years later, the state held a constitutional convention whose stated purpose, according to a Democratic Party advertisement, was to eliminate “the vast mass of ignorant, illiterate and venal Negroes from the privileges of the elective franchise.”

The new state Constitution imposed restrictions on voting, created a poll tax, eliminated Louisiana’s long-standing jury-unanimity requirement and permitted convictions for any non-capital felony with just nine of 12 jurors. Louisiana later amended the law in 1973, requiring a 10–2 vote for conviction.

Oregon enacted its non-unanimous jury law in 1934. It was passed after a media storm developed over the failure of a jury to convict a Jewish man named Jacob Silverman for murder. The jury had found him guilty of manslaughter.

The media coverage included an editorial in the Morning Oregonian that proclaimed “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system,” had the made “the jury of twelve increasingly unwieldly and unsatisfactory.”

In 1972, a deeply divided Supreme Court upheld these laws in Apodaca vs. Oregon. The court ruled that even though unanimous juries were required in federal criminal trials under the Sixth Amendment, the Constitution did not impose that requirement on state trials.

Since 1972, civil rights organizations have tried to persuade the Supreme Court to overturn the laws in Louisiana and Oregon, but have failed.

Today’s argument could well produce a new result. Prominent legal scholars, including Eugene Volokh, a constitutional law professor at UCLA, say that recent Supreme Court decisions applying the Bill of Rights to the states have increased the likelihood that the court will reverse field.

Volokh predicted that the court will rule that the Sixth Amendment’s guarantee of an impartial jury must also apply to the states because of the 14th Amendment’s guarantee of due process of law.

While the Constitution does not specifically mention unanimous verdicts in criminal cases, they have been a common requirement in Anglo American jurisprudence for hundreds of years. It’s long past time for the Supreme Court to correct this anomaly in the criminal justice system.

Henry Weinstein, a former Los Angeles Times staff writer, is a professor at UC Irvine School of Law. This commentary was distributed by the Tribune Content Agency, LLC.

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