State’s criminal justice system under the microscope
25th November 2019 · 0 Comments
By Ryan Whirty
Contributing Writer
Pulitzer Prize-winning journalists and a leading attorney for the mistakenly-convicted last week briefed an audience at the residence of the French Consulate in New Orleans about the status of the criminal-justice system in the city and across Louisiana, focusing on the struggle to abolish non-unanimous juries in the state, and the prevalence of capital-case exonerations.
On Nov. 19, award-winning The Times-Picayune | New Orleans Advocate investigative reporters John Simerman and Gordon Russell were joined by Caroline W. Tillman, an attorney with the New Orleans branch of the Capital Appeals Project, to tell those in attendance that much progress has been made toward achieving fairness and finding the truth in the criminal justice process in recent years.
However, they also stressed that the situation is still unsettled, with several crucial court cases and administrative lethargy threatening to restrict such progress.
“It’s a system that’s clearly broken,” Tillman said in reference to the death penalty, “an expensive and very obsolete system, and we hope it will be abolished soon.”
Simerman noted that the Orleans Parish District Attorney’s Office hasn’t tried a new capital case since 2011, which he says is reflective of how much public opinion and governmental will have swung against the death penalty.
“The district attorney has recognized it’s a tough sell in this city,” Simerman said. “I think it’s his recognition of how difficult it is now.”
Simerman and Russell earned a Pulitzer for their investigation into the statewide use of non-unanimous jury decisions in felony cases, especially those involving the death penalty. Under state law, Louisiana was one of only two states (the other is Oregon) that allowed guilty verdicts on jury votes of 10-2 and 11-1, not just unanimous, 12-0 decisions.
Simerman and Russell went parish by parish examining each non-unanimous verdicts for patterns in how such verdicts tended to paper over weak prosecutorial cases, and the devastating effect of racial and class bias on those trials.
“We asked, ‘Does this system put a thumb on the scale [of justice] in favor of prosecutors?’” Russell asked, adding that in many parishes, their effort was hindered by shoddy record-keeping, vague data and opposition from the local DAs.
Russell added that in many parishes, prosecutors were able to reject Black citizens from juries through questionable means; that left African Americans severely underrepresented on juries, especially capital cases. That sometimes meant that only one or two Black jurists sat for such cases, meaning that, with non-unanimous verdicts allowed, their votes became essentially meaningless.
“They became what they call ‘empty votes,’” Russell said.
Thanks in part to the writers’ project, an already-growing, bipartisan movement to constitutionally abolish non-unanimous juries – which were a remnant of the oppressive, unjust system of slavery and smothering Jim Crow segregation laws – received an even bigger tide of support. The result was Louisiana voters’ overwhelming approval in a 2015 referendum of an amendment to the state constitution outlawing non-unanimous felony verdicts and now requiring 12-0 decisions to convict.
However, Simerman pointed out that the approval of the referendum only involves new cases and trials taking place after the institution of the new state amendment; existing or ongoing cases that started before that date and involve non-unanimous verdicts are still unsettled. That could change when the U.S. Supreme Court, possibly early next year, rules on the case of Evangelisto Ramos, who in 2016 was convicted of second-degree murder by a 10-2 jury decision and who is currently serving a sentence of life without parole.
If SCOTUS overturns Ramos’ conviction, dozens of other cases in Louisiana could potentially be affected.
“A lot of people are waiting for a resolution [to the Ramos case],” Simerman said.
Meanwhile, Tillman and several other advocates continue to press the issue of the death penalty, which – much like non-unanimous juries – is gradually meeting mounting public disapproval.
Tillman and the other attorneys and volunteers who make up the Capital Appeals Project – as well as other organizations seeking justice in capital cases, such as the Innocence Project – pursue cases in which guilty verdicts came despite sketchy evidence, inadequate defense, questionable prosecution methods or unrepresentative juries.
Dozens of those cases and investigations, including several in Louisiana, have resulted in overturned guilty verdicts and exonerations of convicted defendants. For many reasons and across hundreds of cases, Tillman said, the pursuit of the death penalty has continually been flawed and often unjust, resulting in countless wrongful convictions.
“It’s invariably unreliable,” she said.
The increasing prevalence of exonerations and the decline in prosecutorial pursuit of capital cases have also been bolstered by religious opposition to the death penalty, as well as the efforts of Republicans and other fiscally-conservative politicians and officials who argue that the hundreds of millions of taxpayer dollars spent on housing death-row inmates and on prosecutors defending death-penalty challenges and appeals is inefficient and wasteful.
“It comes at huge public expense,” Tillman said of the death penalty.
Much like the previous application of non-unanimous verdicts in Louisiana, racial bias has historically and continually skewed the application of the death penalty and resulted in a starkly unjust system. She said people of color are both convicted in capital cases and sentenced to death in disproportionately higher rates. Meanwhile, minorities are frequently under-represented on juries, especially for death-penalty trials.
Other problematic facets of the death penalty include defendants who, despite their innocence, plead guilty to lesser but still serious crimes in order to avoid the prospect of the death penalty; potential jurors who are rejected outright simply if they oppose the death penalty in principle; and the ongoing complexities inherent when women are tried in capital cases.
“We should really question what this system is designed for,” Tillman said.
Tillman said police, prosecutors and judges need to do a better job of taking mental illness, addiction, domestic abuse and other crucial factors with each defendant when deciding whether to pursue the death penalty.
She added that the misapplication and unjust pursuit of the death penalty by prosecutors and law enforcement officers who “get tunnel vision” when investigating crimes often distorts the purpose of capital punishment, which she said “is only supposed to pursue the worst of the worst” criminals.
Tillman noted that district attorneys’ willingness to even pursue the death penalty has greatly waned in the state. Because of factors like the massive fiscal expense, the prevalence of wrongful convictions and exonerations, and growing public opposition, Tillman said, prosecutors increasingly believe that trying capital cases just isn’t worth it.
Between 2010-15, only two prosecutors in the state pursued the death penalty in cases at all, a fact that hasn’t negatively affected law and order.
“The vast majority of prosecutors don’t use the death penalty, and their [criminal justice] system isn’t crumbling,” she said.
Perhaps the biggest challenge still facing wrongfully-convicted, exonerated and freed death-row inmates, at least on a societal level, is the lingering stigma of guilt applied to such defendants. Tillman said many members of the public continue to regard exonerated defendants with skepticism, a fact that can follow freed prisoners as they attempt to make their way in a community reluctant to accept their innocence. Such citizens often don’t realize that it was sleight-of-hand prosecutorial tactics and questionable application by prosecutors of an often complex and byzantine criminal justice system that’s already biased against certain defendants.
“The perception is that people are released from prison on technicalities,” she said, “when in fact they’ve been staying in prison because of technicalities.”
For their part, journalists Simerman and Russell also pointed to continuing obstacles to fairness in the justice system, such as the disparities in the funding levels and methods for district attorneys’ offices compared to public defenders’ offices, and an often-corresponding lack of experiences among prosecutors and defenders.
Simerman also stressed the importance of pursuing bail-bond reform and eliminating cash bail.
“How do you fund the court system in a new way?” he posed.
Russell and Simerman also discussed the sometimes-troubling use of habitual-offender laws to imprison defendants for long sentences after being initially arrested on simple offenses like traffic infractions. Russell pointed to a case in St. Tammany Parish in which an arrestee ended up with a life sentence after being stopped for reckless driving. Police and prosecutors were able to leverage the defendants’ previous convictions using habitual-offender laws to imprison him or her for that excessive sentence.
Last week’s forum at the French Consulate was co-sponsored by the Press Club of New Orleans.
This article originally published in the November 25, 2019 print edition of The Louisiana Weekly newspaper.
