A ‘Jim Crow jury’ prisoner fights for freedom

11th October 2021   ·   0 Comments

By Nicholas Chrastil
The Lens

Editor’s Note: This story was produced in partnership with Al Jazeera. Watch the documentary “Fault Lines: The Jim Crow Convictions.”

The Bossier Parish Courthouse is located in the town of Benton in northwest Louisiana, about a 30-minute drive from Mollie Peoples’ home in Shreveport, the former Confederate capital of the state.

It is where nearly 25 years ago, her son, Brandon Jackson, was convicted of participating in an armed robbery and sentenced to life in prison. Now, each trip to the squat beige building, flanked by gas stations and fast food restaurants, has come to represent her enduring commitment to him and his struggle for freedom. In 25 years, she hasn’t missed a court date.

“I want him to know that he’s worthy,” she explained recently. “No matter how long he’s going to be in prison, or whatever is going to happen — he would never be forgotten. His momma will never, ever forget him.”

Sometimes, a hearing gets delayed. Mollie will drive home, wait for another hearing, then return again to the courtroom. In the past, she was able to see her son face-to-face. Now, because of COVID-19, she wears a mask, and he appears on a screen from the David Wade Correctional Center, a state prison more than an hour away.

In July, she made the trip again, rattling off the directions to a reporter in the driver’s seat. Another hearing was scheduled.

Brandon says he is innocent of robbing a restaurant at gunpoint, along with an accomplice, and taking more than $6,000 in cash. At his trial, two of the 12 jurors who heard the evidence against him agreed. After deliberation, they voted not guilty.

It didn’t matter. In Louisiana at the time, only 10 out of 12 jurors were required to agree on a verdict in order to convict or acquit someone of a crime. It was one of only two states in the country — along with Oregon — where non-unanimous verdicts were allowed. That’s changed, and if Brandon were brought up on the same charges today, the split jury vote would mean a mistrial.

But in 1997, it meant a conviction.

Brandon, who had prior drug convictions, was sentenced to life in prison under the state’s habitual offender law. The sentence was later reduced to 40 years.

Mollie is in her 70s now, and her health has made these frequent courthouse trips more difficult. In January, not long after Brandon learned he had been denied parole, she suffered an aortic aneurysm, requiring major surgery. She now uses a walker to get around, and is prescribed a wide range of medications she takes daily. She keeps up with the regimen in the hope that she will still be around when, someday, her son walks out of prison a free man.

Ruled unconstitutional

Over the past few years, Mollie has had reason to hope that day may come sooner rather than later, as the state of Louisiana, and the country as a whole, have taken a critical look at the history and practice of non-unanimous jury verdicts.

In the spring of 2018, following a Pulitzer Prize-winning investigation into split jury verdicts by The Advocate and The Times-Picayune, the Louisiana legislature moved to put the issue on the ballot: a constitutional amendment that would require unanimous verdicts going forward. That November, Louisiana voters overwhelmingly approved the change.

But it would only apply to cases initiated on or after Jan. 1, 2019, more than two decades after Brandon, now 49, was arrested.

Then last year, in a case called Ramos v. Louisiana, the United States Supreme Court held that the law allowing split jury conviction was “one pillar of a comprehensive and brutal program of racist Jim Crow measures against African Americans, especially in voting and jury service,” and was unconstitutional.

That ruling, however, only applied to people who still were in the appeals process. Brandon had exhausted his direct appeals before the Ramos decision, so he — along with at least 1,500 people in Louisiana who were convicted on split jury verdicts — remains in prison.

Earlier this year, the Supreme Court issued a new ruling on non-unanimous verdicts. It was another Louisiana case: Edwards v. Vannoy. This time, the court ruled that it would not force states to give new trials to people like Brandon.

To Brandon, there was dissonance in the two rulings. How could the court rule that the practice was unconstitutional, but not require states to revisit those cases that were impacted by it?

“You have a law that you rule and that, you know that’s [ruled] unconstitutional,” Brandon said in a recent interview. “But, from my understanding, we are all under the same Constitution. So you are saying that the Constitution only applies to this part, but not this part.”

Lawyers are still fighting in the state court system and in the Louisiana legislature to get new trials for people like Brandon. They say that by lowering the bar for a conviction, non-unanimous verdicts were more likely to result in innocent people being sent to prison. They also point to the racist origins of the law, which they say was intended to silence the voices of Black jurors, and convict Black defendants.

Brandon’s case, his lawyers say, is a prime example. At his trial, the two jurors who voted not guilty were Black. And like 80 percent of people still incarcerated on non-unanimous verdicts, Brandon Jackson is Black.

While the newer Supreme Court ruling in the Edwards case dampened his hopes, there was still a chance that the Bossier Parish district attorney could decide to vacate Brandon’s conviction based on the Ramos ruling. Alternatively, the district judge could decide that he was entitled to a new trial.

Following the ruling in Ramos, Brandon, along with hundreds of other people still in prison on split jury verdicts, rushed to file petitions for new trials.

That request was what the judge was to consider in July when Mollie headed out to the courthouse.

She stepped into the car, carrying her purse and the shoes she would change into when she got there, and said a quick prayer.

“Amen,” she concluded. “Let’s roll.”

Jim Crow verdicts

In 1898, delegates in Louisiana convened at a state constitutional convention with an explicit goal, written in the official journal of the proceedings: to “establish the supremacy of the white race.”

When the convention delegates met that year, Black men had relatively recently been given the rights of citizenship: the right to vote, the right to hold public office and the right to be judged by a jury of their peers — including their Black peers.

A backlash to racial advancement during post-Civil War Reconstruction, the convention produced laws that became staples of the Jim Crow era South.

The convention also made a specific change to the way criminal trials were conducted in the state, allowing for split jury verdicts in felony trials, where a defendant could be convicted with nine of 12 jurors. (In 1974, the law changed to require 10 jurors to agree.)

“It’s impossible to separate Jim Crow jury convictions from their history,” said Jamila Johnson of the Promise of Justice Initiative (PJI). “Their intent was to convict more Black people and to silence the voices of Black jurors. In practice, they convicted more Black people and have disproportionately silenced Black jurors.”

Brandon’s petition for a new trial is one of more than 1,000 being handled by the New Orleans-based nonprofit, which has been among the state’s most visible advocacy organizations for people still in prison on split jury verdicts.

At the center of their case for demanding new trials is the history of the law that allowed for split jury verdicts. PJI has dubbed such verdicts “Jim Crow jury convictions.”

The limited available data on the issue bears out Johnson’s conclusion about the effects of the law. The Pulitzer Prize winning series by The Advocate in 2018 analysing hundreds of non-unanimous verdicts between 2011 and 2016 showed that Black defendants were more likely to be convicted by a non-unanimous jury than white defendants, and that Black jurors were over twice as likely to disagree with the majority verdict than white jurors.

If Brandon Jackson wasn’t given a new trial, his lawyers argued in his petition, it “would express acquiescence in structural racism.”

The state could not prohibit Black jurors from serving altogether without running afoul of the U.S. Constitution. It could, however, allow for the appointment of local jury commissioners who would limit their number by determining who was “qualified.” And for those who made it to service, split jury laws could make their votes irrelevant.

The delegates of the 1898 convention did not explicitly state any racist intent when agreeing on the non-unanimous jury law, but legal scholars have argued that was to deter federal intervention, and that the purpose could be clearly deduced given their broader political goals of disenfranchising Black people.

Supreme Court Justice Neil Gorsuch wrote in the majority opinion in Ramos that “with a careful eye on racial demographics, the convention delegates sculpted a ‘facially race-neutral’ rule permitting 10-to-2 verdicts in order ‘to ensure that African-American juror service would be meaningless.’”

It’s impossible to say how many people were convicted by split juries in Louisiana because courts did not consistently maintain records of how jurors voted.

“There was no requirement that juries be polled unless defense counsel or the prosecution asked for polling,” Johnson with PJI said. “So in many cases, that never happened, and we’ll never know.”

‘There are serious doubts as to guilt’

The crime that Brandon was convicted of occurred on July 17,1996, around 2:15 a.m. Two masked men with guns entered the back door of the Applebee’s restaurant in Bossier Parish. They tied up the manager and two employees, and robbed the store of more than $6,000 in cash and $2,500 in gift cards. Nobody was injured.

“What sticks out with Brandon’s case as what sticks out with so many of the men and women’s cases that we have with non-unanimous jury verdicts,” Johnson said. “And it’s that there are serious doubts as to guilt. The accuracy of these convictions are really in doubt.”

There was no physical evidence that tied Brandon Jackson to the crime he was convicted of. The prosecutor’s argument during trial rested primarily on the testimony of an alleged co-conspirator, who said Jackson was involved in the robbery.

Another witness, who was not alleged to have taken part in the robbery, said Brandon had been involved in a discussion about the robbery weeks before it took place.

One of the employees at the Applebee’s that night was Joseph Young, who was dating Brandon’s sister at the time. Initially, when interviewed by police, Young claimed that he was unable to identify either of the perpetrators due to their masks. But later into the investigation, he changed his story and said he had in fact been a co-conspirator in the crime, letting the perpetrators in the back door.

Young led police to his mother’s house, where he showed them the guns that were allegedly used in the crime, along with over $500 in cash he said he got for facilitating the robbery.

He also told them Brandon Jackson had been one of the men who had carried it out.

Clip from an August 1996 videotaped interview of lead witness Joseph Young.

It was one of several times Young would change his story. Al Jazeera and The Lens obtained a videotaped recording of Young that was taken in August 1996, prior to Brandon’s trial, but after Young had implicated him in the crime. In the video, Young tells Brandon’s lawyer that neither of the men who robbed the Applebee’s matched Brandon’s build, and that he didn’t know who they were. The tape, however, was withheld from the jury because the judge ruled that it would violate attorney-client privilege — despite the fact that Brandon’s attorney was not representing Young at the time.

Young had an incentive to testify against Brandon. In exchange for cooperating with the prosecution, Young served just 3 months in jail, and was placed on probation.

The testimony of Ken Fuller, who told police he overheard the conversation between Brandon, Brandon’s brother, and Young, regarding the robbery before it took place, also had some issues.

Fuller had been smoking weed with Brandon’s brother that day, and when asked by prosecutors at trial what role Brandon played in the conversation, he said: “It was so much going on I just couldn’t really tell.”

The evidence, it seems, was not enough for the two jurors who voted not to convict Brandon.

The jurors

Al Jazeera and The Lens were able to track down one of those Black jurors in Brandon’s case, and spoke with her on the condition of anonymity.

“When they presented the case, and when we deliberated, I was not convinced that it was proven that he was guilty,” she said. “No one was able to say that they knew it was Brandon, they recognized him, that they knew his mannerisms — no one was able to say enough to convince me that they were sure that it was him that committed the robbery.”

She said that when she made her doubt about Brandon’s guilt known to the rest of the jurors, it was “blown down.”

“I mean, they dismissed it,” she said.

Her decision to remain anonymous when talking with The Lens and Al Jazeera, she said, was because it could have a “negative affect” on her employment.

“I wouldn’t want it to get back to my bosses,” she said. “Because they think a lot like the people on the jury did: ‘He’s a criminal, let’s get him off the street. Let’s lock him up’….Or maybe, even, he’s a Black man, let’s lock him up.’”

Juror Stacey Marks, who is white, said the witness testimony was only part of what prompted her vote to convict — a decision that she still has no doubts about. Another reason, she said, had to do with the way Brandon handled himself during the trial.

She felt Brandon was “overconfident.”

“Something about his demeanor, like he was trying to win us over to his side with his smile,” she said. “He made a lot of eye contact.”

Brandon, however, said that he had just been doing what his lawyer instructed him to do.

“He said always give the jury eye contact,” Brandon said. “So if she based her decision on the way that I look, what does that say about the type of world that we live in?”

Marks also said that the fact that the two jurors who voted not guilty were Black did not make her question the verdict in Brandon’s case, because it was possible that they were only dissenting because Brandon was Black himself. (The Black juror denied that she had dissented because of Brandon’s race.)
“It does not make me think differently, because did they vote for him not to be guilty because he was Black or did they vote for him not to be guilty because of the facts?” she said. “And we don’t know. I don’t know.”

‘You can’t eliminate the racial element’

When the U.S. Supreme Court ruled in the Edwards case that people like Brandon were not entitled to a new trial, it was not entirely unexpected, and advocates had already been thinking of a back-up plan. In addition to filing individual petitions for new trials in courts across the state, they were also pushing a bill at the Louisiana state legislature in Baton Rouge that would change procedural timelines so that anyone with a split jury conviction would get a new trial. That bill got a hearing in the House Committee on the Judiciary in May of 2021.

The main opposition to the bill stemmed from the Louisiana District Attorneys Association, which represents the elected prosecutors throughout the state. If the bill passed, they argued, it would place an undue burden on local DAs who would need to review the cases and decide whether or not they would retry them. They also said they were concerned about the potentially painful effect on victims and their families of reopening cases with 10-2 verdicts, along with the logistical difficulties involved with retrying them.

But at the hearing on May 27, no one showed up to express those concerns. Instead, there was over an hour of emotional testimony on the racist history of non-unanimous jury verdicts and their unreliability in determining guilt.

Brandon waited to learn of the outcomes from inside David Wade Correctional Center in Claiborne Parish. And as with the Edwards ruling, he would be disappointed.

While none of the Republican legislators expressed their reasoning at the hearing, one by one they voted to kill the bill, which failed on party lines. The majority of the Democratic legislators who voted for it were Black. All of the Republicans who voted against were white.

When asked why he voted against the bill, Rep. Nicky Muscarello, Republican of Hammond, Louisiana, pointed to Edwards ruling.

“I feel pretty confident in my vote because the Supreme Court said that the way we did it was correct,” Muscarello said.

And he said that his decision didn’t have anything to do with race.

“What we did was not about race. It was about doing what was right.”

But other legislators who watched the bill’s demise disagreed with Muscarello that the decision could be divorced from the issue of race.

“There are no Black Republicans here, right?” said Ted James, a Baton Rouge Democrat who was instrumental in passing the 2018 bill that sent the decision on unanimity in future criminal cases to the voters. “So when they know that the people that this would benefit from don’t look like them, likely didn’t grow up in their neighborhoods, likely don’t know anyone that could contact them, they don’t care about it.”

That, James said, was why white Republicans in the legislature didn’t believe it was necessary to expand the unanimity requirement to old cases like Brandon’s.

“So you can’t eliminate that the racial element, because I would guarantee you if 80 percent of the folks that we were talking about were white, the bill would have passed. Period.”

Addressing the ‘sins of the past’

Despite the inaction from the United States Supreme Court and the state legislature, one local district attorney has promised to look back at all non-unanimous convictions out of his district. In New Orleans, shortly after taking office this year, Jason Williams vacated 22 convictions of people in prison on split jury verdicts, and ended up striking plea deals with many defendants that allowed them to get out of prison.

Williams, a defense attorney and former New Orleans City Councilman, ran for Orleans Parish DA last year as a so- called “progressive prosecutor.” On the campaign trail he called the criminal justice system both racist and sexist — designed to protect and serve one group of people while policing and prosecuting another.

His immediate predecessor was Leon Cannizzaro, a controversial DA who was criticized by reform groups for aggressive and sometimes legally questionable tactics — such as jailing crime victims for allegedly refusing to cooperate and fabricating bogus subpoenas, which were never approved by a court, and delivering them to witnesses to pressure them to come to off-the-record meetings with prosecutors.

Prior to Cannizzaro, a prosecutor named Harry Connick held the office for decades, gaining national attention for a number of cases where prosecutors in his office illegally withheld exculpatory evidence from defense attorneys, causing innocent people to spend years in prison for crimes they didn’t commit.

Williams vowed to reverse the tough-on-crime policies and the “win at all costs” of his predecessors that he said contributed to Louisiana having the highest incarceration rate in the country.

In addition to throwing fewer people in prison in the future, Williams also promised to “address the sins of the past” — by reviewing wrongful convictions, excessive sentences, along with granting new trials to people still in prison who were convicted in New Orleans on non-unanimous verdicts.

“The Supreme Court may not address retroactivity,” Williams said on the campaign trail. “But as DA, I will. If non-unanimous juries are not fair, then they can’t be fair for the ones that happened in the past.”

It was a big promise. More people are sitting in prison with non-unanimous convictions that stemmed from trials in Orleans Parish than anywhere else in the state. The Promise of Justice Initiative has identified over 300.

But after taking office, Williams’ personnel decisions signaled his seriousness about taking on past cases. To lead his new Civil Rights Division he hired Emily Maw, former director of the Innocence Project New Orleans. And as his chief of appeals he hired Ben Cohen, who worked at the Promise of Justice Initiative, and was the counsel of record in Ramos v. Louisiana — the case in which the U.S. Supreme Court struck down splitjury verdicts.

Williams began to make good on his promise of tossing splitjury verdicts just months into his term, vacating the convictions of 22 people still in prison during a single hearing in February.

On the steps of the Orleans Parish Criminal District Courthouse, following the hearing, Williams held a press conference where he proclaimed that his was “no longer a Jim Crow office.”

The vast majority of the defendants whose convictions were tossed out that day would not be retried — instead, most agreed to taking plea deals for lesser charges. Many of them were released from prison. A few cases were referred to the office’s Civil Rights Division to review them for prosecutorial misconduct or the possibility of actual innocence.

The move created some controversy, with a number of crime victims saying that they were not given sufficient notification or chance to express their opposition to the move. At a resentencing hearing a few weeks later, a man who had been shot in the face by one of the people whose verdicts Williams’ office tossed said that New Orleans prosecutors did not contact him in advance. He called for Williams’ resignation.

Criminal justice reform groups, however, cheered on Williams’ decision to toss the convictions. And at least one of the people whose convictions were overturned was not only convicted by a split jury— he was actually innocent.

After an 18-year-old man claimed that he had robbed him at gunpoint for cash and jewelry, Jermaine Hudson was convicted of an armed robbery in 2000 by a 10-2 split jury. Hudson, who had a previous robbery conviction, was charged as a second-time felon under the state’s habitual offender law and sentenced to 99 years in prison. He maintained his innocence.

In February, however, Hudson had decided to accept a plea deal offered by Williams in order to get out of prison after spending 22 years there. After his conviction was vacated, but before accepting the deal, the man who accused Hudson of robbing him 22 years earlier came forward and said he had made the whole thing up. The robbery had never even taken place. The man said he had used it as an excuse for spending his parents money on drugs.

At a hearing the following month, Williams’ office agreed to drop the charges altogether without a plea deal. Fully exonerated, Hudson was released from the Louisiana State Penitentiary at Angola.

Hudson used his newfound freedom to advocate for others, like Brandon Jackson, who remain incarcerated on split jury verdicts. In May, he was among those at the legislature pushing for the Judiciary Committee to pass the bill that would have ensured new trials for anyone sitting in prison on a non-unanimous conviction.

After the initial batch of cases in February, however, the rate of cases that Williams office has moved to vacate has slowed considerably, and there have been no hearings like the one in February where multiple cases were vacated at the same time.

In late September, over six months after the initial batch of cases was vacated, his office had vacated just 21 additional cases.

Williams said that because the Supreme Court decision in Edwards — which came in May — won’t be forcing his office to address the cases, there is not the same sense of urgency there was before, and that he was committed to doing more victim and witness outreach. He said that the office was still committed to reviewing all cases with non-unanimous verdicts, and they were handling more than ever.

“Our process is not slowing down,” he said in an interview in July. “The number of cases hitting the court’s docket may have slowed down, but we’re actually dealing with and working on more cases.”

Jamila Johnson, with PJI, however, said that the current rate of getting cases on court dockets was concerning.

“We’re probably not going to get through these numbers unless we pick up the pace at looking at these cases,” Johnson said.

Her clients convicted in Orleans Parish were hopeful, but “they don’t understand why their cases aren’t just being vacated and retried.”

Still, she said, what Williams was attempting to do was unprecedented.

“We are six months into this, and I don’t know that any district attorney has brought home as many people from Angola — from these plantation prison, from these circumstances — as he has,” she said.

But other prosecutors in the state have not followed Williams’ lead. That includes the Bossier Parish DA’s office, which prosecuted Brandon’s case.

‘At this rate, I’m not going to make it’

After some technical difficulties were taken care of by court staff, Brandon appeared on a videoconference screen in the Bossier Parish courtroom where Mollie Peoples had been waiting for more than an hour for the judge to make a decision on his petition for a retrial. Instead, he put the decision off until a future date.

“It’s like we’re in a holding pattern,” Mollie said outside of the courthouse. “They just don’t want to turn him loose.”

In August, after suggesting to Al Jazeera and that he would look into the case, Bossier Parish district attorney Schuyler Marvin sent a letter saying there was “ample evidence to support the conviction” and he would not support a new trial for Brandon.

“It is impossible to speculate with any degree of certainty whether or not Mr. Jackson’s verdict would have been any different if the jury had been charged with unanimity,” Marvin wrote. “My office will not vacate and retry convictions solely because of a non-unanimous verdict.”

Since then, prosecutors have filed a formal objection. Brandon’s attorneys are working to set up another hearing in October.

For Mollie, however, every delay increases her doubt that she will ever be able to see her son again as a free man.

“I don’t have long,” she said. “I asked God to allow me to live long enough to see him go free. But at this rate, I’m not going to make it.”

The above article originally appeared in The Lens on its website (www.thelensnola.org). The Louisiana Weekly enjoys a partnership with The Lens.

This article originally published in the October 11, 2021 print edition of The Louisiana Weekly newspaper.