Parts Unknown: Field Notes on Louisiana’s Split Jury Rule

After exploring southern Louisiana for his prominent CNN television show, "Parts Unknown," Anthony Bourdain described the state as a “magnificently weird place where locals continue to do things their own way.” He found the culture to be “closer to the ancient French tradition . . . vaguely dangerous, downright medieval.” While Bourdain was surely referencing the state’s food, festivals, and culture, his description is equally applicable to Louisiana’s legal developments surrounding jury unanimity.

What is the draconian “split jury rule”?

In November of 2018, Louisiana voters finally altered the “dangerous, downright medieval” jury rule from the Jim Crow era that permitted non-unanimous verdicts (the “split jury rule”) in serious felony cases. Prior to the  vote amending the state constitution to require jury unanimity, a criminal defendant could be found guilty by a vote of only 10 out of 12 jurors. In almost every other state, 10 jurors voting “guilty” and 2 voting “not guilty” results in a mistrial—not a conviction.

Will the dead rule get a second line?

          Though Louisiana voters eliminated these types of verdicts moving forward, the new unanimity requirement only applies to crimes occurring after January 1, 2019. Offenses that occurred prior to January 1^st are still subject to the split jury rule. Defendant, Valentino Ramon Hodge, finds himself in this purgatory after allegedly committing a felony before the new law took place. The district attorney prosecuting his case seeks to apply the split jury rule, hoping to increase the chances of getting a conviction. Hodge’s defense attorneys argue that such an instruction is unconstitutional and have appealed to the Louisiana Supreme Court to make such a finding.

The state’s highest court will now have to decide whether permitting non-unanimous jury votes in serious felony cases is unconstitutional—without much favorable guidance from the United States Supreme Court. The Court has found that split jury verdicts do not violate a defendant’s Sixth Amendment right in noncapital cases. The Court reasoned that “[r]equiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit.” In other words, the split jury rule has the potential to acquit a defendant without possibility of retrial whereas the same result in a unanimous jurisdiction may leave the defendant open to being retried.

Split Jury or Unanimity: Which produces a more just result?

Because split juries can cut in favor of the prosecution or the defendant, it is not clear whether unanimity or split juries produce a more just, rights-protective result. Some data provides insight. Of 49 people exonerated post-conviction in Louisiana, 25 faced serious felony charges which permitted the split jury instruction. Of those 25, 11 were convicted by non-unanimous jury verdicts. This means split juries in Louisiana sent 11 innocent people to prison. If the jury voted the same way elsewhere, those 11 people would not have been convicted and would not have seen any prison time (assuming the defendants were not retried or were retried and received at least the same result). So, while it seems the split jury may, at times, cut in favor of defendants, the image of innocent people enduring convictions and jail time because of the split jury rule seems a bit, well, “dangerous, downright medieval.”

The potential for error coupled with the wisdom of 48 other states requiring jury unanimity in serious felony cases seems to support the idea that, on balance, unanimity is the better choice. Sure, keep Louisiana’s culture “magnificently weird,” but one can only hope the Louisiana Supreme Court will keep the split jury rule in the past where it belongs.