NEW ORLEANS -- The jury vote Sunday that found Cardell Hayes guilty of manslaughter and attempted manslaughter in the shooting death of Will Smith and the wounding of Smith's wife would not have been enough for a conviction anywhere else the United States.
Forty-eight states and the federal government would have required a unanimous vote of the jury to convict.
Some activists believe an unusual provision in Louisiana's constitution could be one reason that juries sometimes convict the wrong person.
Louisiana is well known for having the highest incarceration rate in the world. And many of the 38,000 inmates in Louisiana prisons and jails were convicted by jury decisions that are not allowed in 48 other states.
That is because Louisiana is one of only two states that allows somebody to be convicted of a felony by means of a less than unanimous verdict of the jury.
Marjorie Esman of the American Civil Liberties union explains that death penalty cases must be unanimous everywhere. But in Oregon – the only other non-unanimous state – juries can convict people accused of other felonies with an 11-to-1 vote.
Louisiana allows conviction with a 10-to-2 vote.
“It is much easier to arrive at a guilty verdict if you don’t have to get everyone to agree,” said Emily Maw of Innocence Project New Orleans.
According to historian Thomas Aiello in his book, Jim Crow’s Last Stand, Louisiana’s non-unanimous jury system first came about after the Reconstruction era.
Aiello said it was an effort to “re-enslave” black men.
“The idea was to convict as many people, black people, as possible to send them to Angola where they could be used for convict leasing,” Esman said.
The end of slavery meant the loss of a huge, free workforce. So, Aiello said prison inmates were leased out to businesses and plantations to replace that workforce.
“They basically created this convict leasing system to make it easier to continue to convict black folks to continue to work on these plantations,” said Will Snowden of the Orleans Public Defenders Office.
Aiello said Oregon’s non-unanimous jury law came about in the 1930s due to strong anti-Jewish sentiment. He says it happened at a time when the Ku Klux Klan, organized by a man from Louisiana named Luther Powell, was promoting bigotry.
“It came from the same kind of racist history,” Esman said.
Maw of the Innocence Project and Esman of the ACLU believe non-unanimous juries tend to be less thorough.
“They don’t ask as many questions,” said Esman. “They’re quicker to come back with a verdict.”
“There is less discussion of potential problems with evidence,” Maw added.
Plaquemines Parish District Attorney Charles Ballay disagrees. He said a decision by 10 out of 12 is a higher standard than the U.S. Supreme Court has for its decisions.
“It’s a simple majority, 5 out of 9” for the Supreme Court," said Ballay. “Fifty-five and a half percent of the U.S. Supreme Court can decide a decision that affects us all around this whole country.”
“Our constitution requires there should be proof beyond a reasonable doubt,” Esman said. “If two people out of 12 are not convinced of somebody’s guilt, then by definition that is reasonable doubt.”
Orleans public defender Will Snowden said the ability to disregard the doubts of two jurors undermines justice.
“People are having their constitutional rights violated,” he said.
E. Pete Adams of the Louisiana District Attorneys Association said, “Any claim that non-unanimous verdicts are unconstitutional are simply false.”
“It’s certainly constitutional,” said Ballay. “This issue has been raised before our state supreme court as well as the U.S. Supreme court many, many times, and it’s been upheld all the time.”
The Innocence Project said 44 convicts have been exonerated in Louisiana over the past 26 years. Twenty-four of them were convicted by juries that could have reached non-unanimous verdicts. Of those, Emily Maw says almost half - 11 convictions - were less than unanimous.
“You know, 11 people have been convicted in Louisiana who were not guilty of the crime, absolutely innocent because we permit nonunanimous jury verdicts,” she said.
Marjorie Esman said, “If you convict the wrong person, not only have you, you know, cost an innocent person years of their life, but you’ve also left the actual perpetrator out on the street. And so public safety is actually harmed by this.”
“Innocent people get convicted more often because we allow nonunanimous jury verdicts,” according to Maw.
Ballay said, “I’m just not aware of anything that would give any credence to that at all.”
And Adams, the executive director of the state district attorneys association said, “Claims that non-unanimous verdicts result in more convictions are speculative and unsupported by credible research. There is no credible evidence that requiring unanimous verdicts will improve the reliability of verdicts.”
“In addition to that,” Ballay said, “of course, we have an appeals process. In Louisiana, he says the appeals courts consider fact and law. So the appellate courts look at the entire record.”
And yet according to the National registry of Exonerations Louisiana has the second highest per capita rate of exonerations in the nation. Orleans Parish has the highest per capita rate of any county in the country – more than nine times the national average. Jefferson Parish has the fifth highest per capita rate.
Esman said, too often “We are convicting the wrong people.”
Historian Aiello said when Louisiana’s constitution was first changed to allow non-unanimous verdicts in 1880, a jury could vote 9-to-3 to convict a defendant.
According to Aiello, lawmakers changed Louisiana’s constitution in 1880 to allow a nine-to-three jury verdict.
In 1974, Louisiana’s constitution was changed to allow a 10-to-2 jury verdict.
As of now no constitutional change is planned to the laws in either Oregon or Louisiana.
The district attorneys of Jefferson and St. Bernard parishes, Paul Connick and Perry Nicosia, did not respond to repeated calls for comment about this story.
The district attorneys of Orleans and St. Tammany referred us to the Louisiana District Attorneys Association.
Louisiana’s attorney general, Jeff Landry, declined our request for an interview.