Jim Crow's Last Stand

Nonunanimous Criminal Jury Verdicts in Louisiana

Thomas Aiello

• Publisher: LSU Press
• Year: 2015
• ISBN:
  9780807159019
• Topic: History
• Subtopic: North American History
• Index: History

The last remnant of the racist Redeemer agenda in the Louisiana's legal system, the nonunanimous jury-verdict law permits juries to convict criminal defendants with only ten out of twelve votes. A legal oddity among southern states, the ordinance has survived multiple challenges since its ratification in 1880. Despite the law's long history, few are aware of its existence, its original purpose, or its modern consequences. At a time when Louisiana's penal system has fallen under national scrutiny, Jim Crow's Last Stand presents a timely, penetrating, and concise look at the history of this law's origins and its troubling legacy. The nonunanimous jury-verdict law originally allowed a guilty verdict with only nine juror votes, funneling many of those convicted into the state's burgeoning convict lease system. Yet the law remained on the books well after convict leasing ended. Historian Thomas Aiello describes the origins of the statute in Bourbon Louisiana-a period when white Democrats sought to redeem their state after Reconstruction-its survival through the civil rights era of the 1950s and 1960s, and the Supreme Court's decision in Johnson v. Louisiana (1972), which narrowly validated the state's criminal conviction policy. Spanning over a hundred years of Louisiana law and history, Jim Crow's Last Stand investigates the ways in which legal policies and patterns of incarceration contribute to a new form of racial inequality.

CHAPTER 1
The Plight of Frank Johnson

It was a clear, sunny day on December 26, 1967. It was cool, but the temperature stayed in the high fifties for most of the day, making work that much more comfortable for Eugene Frischertz, who was frustrated but resigned to be working the day after Christmas. He watched the day prior as local headlines were dominated by the undefeated Wyoming Cowboys arriving in New Orleans for the Sugar Bowl, where they would take on the locals from LSU.¹

Frischertz lived in Metairie, but came into the city every morning to drive a Coca Cola Bottling Company delivery truck. He was on edge that day after Christmas. His morning rounds had gone as planned, but he was aware, like all of the city’s delivery drivers were aware, that there had been a spate of truck robberies in 1967, and worried that his might be next.²

The Sugar Bowl saturated the time and energy of the local media through much of December—and it permeated the thinking of Eugene Frischertz, as well—but buried in the back pages of the newspaper for much of the year were the robberies, a seeming epidemic that affected the drivers of local trucks and public buses. The Robbery Division of the New Orleans Police Department’s Detective Bureau had been engaged in a broad investigation of a problem that plagued the city for most of 1967 and would continue to plague it for much of 1968.

It was in March 1967 when two black men robbed an Imperial Trading Company truck, kidnapping the driver and taking six hundred dollars “and an undetermined amount of cigarettes.” The driver escaped, but the robbery was an early incident in a growing spree across New Orleans. Robberies in April more than doubled over the same month in 1966, from 75 to 163. And the trend showed no signs of abating. On May 22, for example, two bus drivers and a truck driver were robbed at knifepoint, the three separate incidents among many by “Negro thugs” who seemed to be perpetually patrolling the streets. Most of the time, the robbers were after the cash drivers kept on them following product deliveries. Sometimes they just wanted products. In August, a black gunman robbed a New Orleans Beverage Agency truck for “$104 in whiskey.” Whatever the individual choices of the city’s truck thieves, they were still robbing truck drivers after summer’s end. The crime spree would continue throughout the rest of the year and into 1968.³

Around 3:30 in the afternoon on December 26, Frischertz finished a delivery to Brown’s Grocery on Third Street in New Orleans and returned to his Coca-Cola Bottling Company delivery truck. He wasn’t nervous, but he was certainly vigilant. He knew the horror stories from his fellow drivers. It had been a difficult year.

He saw the man coming. He was still in front of Brown’s when he noticed him in the driver’s side mirror. Frischertz had never had a gun in his face before. “We had just finished making this stop at Brown’s Grocery and we were getting in our truck,” he explained, referring to himself and a coworker, “and we were getting ready to pull away from the curb, I saw this fellow come up, in the rear view mirror of the truck, and it looked—I didn’t know his intentions at first—but as he came up to the door of the truck, he brandished this revolver and he asked for all my money.” He handed the robber between five hundred and six hundred dollars that belonged to Coca-Cola, and he gave him the thirty-one dollars in his pocket. After the man fled, Frischertz ran back into Brown’s and called the police.

The Detective Bureau’s Robbery Division had varying degrees of luck on individual robbery cases, but had nothing specifically on the Frischertz case until January 18, 1968, when a confidential informant told his police contact that a black man named Frank Johnson and an accomplice, Harold Hayes, had been robbing truck drivers. Acting on the tip, the police showed photos of Johnson and Hayes to Marion Catalano, a driver for Brown’s Velvet Ice Cream. Catalano had been the victim of three armed robberies, beginning in October 1967. The third happened two days prior, on January 16, when “two Negro men walked up” brandishing a gun and demanding his money. The rattled Catalano identified Johnson, and his positive identification was all the police needed.⁴

Just after five o’clock a.m., on January 20, 1968, Frank Thomas Johnson was asleep in his Philip Street home. His wife was asleep beside him, their youngest son and his cousin asleep in the next room. His friend Harold Hayes was sleeping in the living room and was the first to wake when the banging started. “It was a lot of knocking on the door and I got up and I went to the door and I opened the door and they said, ‘This is the police.’ And so I let them in.” The Detective Bureau had finally arrived.⁵

“They went in the first room and turned the mattress up on the bed and into the second room and that is when they woke my wife up and the kids started crying and they went into the third room, which was the room where two smaller kids were and my oldest son,” said Johnson. “And my oldest son was sleeping in the front room. He is about eighteen months old. And they all woke up and started crying.” Johnson was incredulous. “They questioned me concerning this supposed armed robbery that I allegedly committed and they questioned me at length about various other individuals whose pictures they brought to me to see, and I told them I didn’t know anything about any of that.”⁶ They arrested him anyway.

Three days later, Eugene Frischertz stood in a cold police station behind reflective glass. He watched as seven men walked into the room on the other side of the glass and immediately identified the one in the middle, number four, as the man who had robbed his truck. It was Frank Johnson.⁷

Johnson was tried and convicted not for the Catalano robbery, but for the Frischertz robbery, and his appeal attacked the conviction on several fronts. His arrest, for example, was, Johnson argued, the result of a warrantless search, in violation of the Fourth Amendment. It was also problematic that he was tried for a crime other than that for which he had originally been arrested. But the principal reason for Johnson’s appeal was rooted in the Sixth and Fourteenth amendments. The Sixth Amendment ensured defendants a speedy and public trial by an impartial jury. It promised that they would be informed about the accusation, that witnesses against them would confront them, that they could compel witnesses to testify on their behalf, and that they had a right to legal counsel. Section One of the Fourteenth Amendment prohibited states from making laws “which shall abridge the privileges or immunities of the citizens of the United States.” No state could deprive a citizen of “life, liberty, or property without due process of law,” nor could it deny “the equal protection of the laws.”⁸

The twelve trial jurors convicted the defendant with a tally of nine votes to three, depriving Johnson of his liberty with what Louisiana maintained was “due process of law.” Article VII, Section 41, of the Louisiana State Constitution of 1921 validated nonunanimous jury verdicts in noncapital criminal proceedings, and the mandate was upheld in congressional legislation and judicial review for the previous nine decades, but the concept seemed inherently problematic. Only Louisiana and Oregon allowed such decisions. Every other state, as well as the federal government, required unanimous verdicts in noncapital criminal proceedings. Even as Johnson waited in lockup, the Louisiana Supreme Court validated the practice yet again—as it had since 1899—until it received “a clear exposition of this point by the Federal Supreme Court.”⁹

Johnson v. Louisiana (1972) would make it to the U.S. Supreme Court, tried in conjunction with a similar Oregon appeal, and the outcome validated the legality of nonunanimous criminal jury verdicts.¹⁰ But it didn’t end the controversy about the approximate justice they provided for criminal defendants. In the century prior to Johnson, appellants had argued that nine-to-three verdicts made it that much easier to convict. The state countered that they also made it that much easier to acquit. Appellants argued that nine-to-three verdicts in noncapital criminal cases overly complicated a system that often tried defendants on multiple counts, including misdemeanors and capital offenses. The state countered that they reduced the number of hung juries, thereby streamlining the system and saving the state money. The Supreme Court was less concerned with such arguments, instead arguing that consistency provided fairness, and fairness was the fundamental bedrock of due process.

In so doing, however, the court did validate the state’s arguments about the inherent justice of nonunanimous verdicts, even though the argument that nine-to-three verdicts made it easier to acquit ignored the reality that criminal defense attorneys in other states needed to create reasonable doubt in the mind of only one juror to be successful. That being the case, the controversy over nonunanimous verdicts would remain after the Johnson decision. There is, after all, no necessary equivalency between consistency and fairness. Consistency provides process. Fairness provides people their due. However, the assumption that consistency breeds fairness, and thus a reasonable due process, is a mistake of logic that would confuse even as it clarified.

The principle of nonunanimous jury verdicts in noncapital criminal cases was not a unique Louisiana holdover from the Napoleonic Code. It was not a legacy handed down from France or Spain or the Holy See, as were so many of Louisiana’s other governmental idiosyncrasies. It was a conservative measure fired in the crucible of the Bourbon restoration following Reconstruction, when white Democrats sought to return their state to some sense of normalcy following federal occupation. The law validating nonunanimous jury verdicts first passed in 1880 and was codified in the Louisiana State Constitution of 1898. It was the era of the Redeemers. It was the era of Jim Crow. And the same leaders reimposing white southern rule and formulating the convict lease system fundamentally changed a process that had been in place since American transfer following the Louisiana Purchase and used it to create more convicts.

CHAPTER 2
The Politics of Transfer

The dominant assumption that Louisiana’s criminal jury requirements were holdovers not from Bourbon restoration but instead from its French ancestry falls at the water’s edge of American transfer following the Louisiana Purchase. The process of that transfer was complicated. France signed over Louisiana to the United States on October 1, 1800, even though Napoleon didn’t actually own Louisiana at the time (he would sign the Treaty of San Ildefonso with Spain the following day, October 2, even though as a component of the treaty he falsely promised not to give the territory to a country that might prove a threat to Spain). On October 20, ten days before the imposed deadline, the U.S. Senate ratified the deal, and a month after that, on November 30, Spain finally transferred Louisiana to France in a New Orleans ceremony. Finally, on December 20, 1803, the French transferred the territory to United States representatives, William C. C. Claiborne and James Wilkinson. Sparked by the deal, Americans rushed to claim land in the new area, but those who had lived under Spanish and French rule were horrified by the transfer. Trading with Protestants was one thing. Answering to them was another. And so the American Congress moved quickly to develop a system of governance for a people who were skeptical at best about being governed.

In March, Congress divided the territory into two sections, Louisiana and Orleans (the territory that would ultimately become the state of Louisiana) and provided a temporary governmental structure for them. “In all criminal prosecutions which are capital,” the law stipulated, “the trial shall be by a jury of twelve good and lawful men of the vicinage; and in all cases, criminal and civil, in the superior court, the trial shall be by a jury, if either of the parties require it.” Such was the common assumption of American jurisprudence. When a more permanent governmental structure arrived the following March, Congress refined its edict by formalizing a system by which all criminal trials were determined by a twelve-man jury. When the territory became a state in 1812, the locals produced a constitution in line with its territorial forebear. All criminal prosecutions “by indictment or information” required “a speedy public trial by an impartial jury of the vicinage.”¹ The twelve-man edict was gone, replaced by an emphasis on the public nature of criminal trials, but the implication of the territorial legislation was still in place: criminal decisions require unanimity.

Such was a valiant start, but broad constitutional provisions were always seen as nothing more than a start. To that end, the Louisiana legislature tapped one of its most accomplished lawyers, a former U.S. attorney and mayor of New York named Edward Livingston.² By 1821, Livingston was a member of the state legislature tasked with developing a comprehensive system of penal law. He had a draft in 1824, another in 1826, but his finished product was finally published in its entirety in 1833. Livingston’s text described a traditional criminal jury procedure, in which twelve men decide unanimously on the guilt or innocence of the accused. More than ten of the articles in the author’s five chapters detailing the role of juries in criminal cases emphasized the necessity of twelve-man unanimity, and “if the court or either of the parties think that all the jurors have not agreed to the verdict that may have been given by the foreman, they shall severally be asked whether they agree, and if any one answers in the negative, the whole jury shall be sent out for further deliberation.”³ Though Livingston’s code was never officially adopted by the state, it was clearly influential, earning its author national and international acclaim and forming a clear basis for an official penal law code for Louisiana eight years later in 1841.

The official code included specifications with which Livingston had not troubled himself. “Free negroes, mulattoes, or mustees” would have a right to a jury trial, but slaves couldn’t be witnesses in the trial of a white person. Nor could they be witnesses in the trial of “a free person of color,” unless that free person of color was accused of inciting a slave rebellion. Jurors would receive a dollar and fifty cents every day of their service, and six and a quarter cents for every mile traveled to arrive and return. There was, however, a remarkable consistency as to the number of jurors and the need for unanimity in convictions or acquittals. “The method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences, and misdemeanors, changing what ought to be changed, shall be, except as is otherwise provided for, according to the common law of [England].” Among the 1841 revisions were provisions to ensure that “criminals definitively sentenced to death are incapable, until pardoned, of entering into the marriage contract,” and that “persons sentenced to imprisonment, pillory, or other infamous punishment, are not able to contract matrimony, until such punishment has been inflicted, or the offender pardoned.” The largest difference between Louisiana’s 1841 penal code and Livingston’s earlier draft is that the state relegated itself to such individualistic pittances while leaving “the method of trial, the rules of evidence, and all other proceedings” to the general dictates of English common law. But it did leave them to common law, and that meant a unanimous twelve-man jury.⁴

In the two decades between 1841 and the Civil War, Louisiana created two new constitutions, both reiterating the necessity that criminal defendants have “a speedy public trial by an impartial jury of the vicinage.”⁵ But, as the war came to a close, constitutional overhaul had less to do with congressional whim and more with American requirements for reentering the union. Jury trials, however, were not a core component of state reentry. Thus, while the language of the provision changed, the law stayed the same. The Constitution of 1864 ensured criminal defendants “a speedy public trial by an impartial jury of the parish in which the offence shall have been committed,” and the Constitution of 1868 ensured the same, with the exception of allowing for the possibility of venue change. The 1868 constitution mandated a new code of judicial practice, and the 1870 result of that mandate again emphasized a twelve-man jury that could convict or acquit only “if it appear that all the jurors have agreed to the verdict.” The 1870 legislation was the clearest example of Livingston’s influence in the nineteenth century, even mimicking the congressman’s original phrasing.⁶

Every piece of legislation passed during Reconstruction, however, was at least to some degree created under duress. Louisiana was one of the last two states to witness the full removal of federal troops, and the end of occupation brought by the Compromise of 1877 seemed to many to be a catalyst for rebirth. After southern Democrats acceded to the presidency of Republican Rutherford Hayes in exchange for economic favoritism and a final end to Reconstruction, the Louisiana state legislature ordered another in a long line of constitutions, hoping to rid itself of postwar federal mandates it found to be odious in the extreme. None of those mandates involved trial by jury, but in their new document, state officials further refined the jury trial mandate anyway. “In all criminal prosecutions the ac...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• CONTENTS
• PREFACE
• 1. The Plight of Frank Johnson
• 2. The Politics of Transfer
• 3. The Creation of Convict Lease
• 4. The Triumph of the Redeemers
• 5. The Whisper in the Crowd
• 6. The Burden of Precedent
• 7. The Vagaries of Due Process
• 8. The Decision in Johnson
• 9. The Ghost in the Machine
• 10. The Trial of Derrick Todd Lee
• EPILOGUE
• APPENDIX I. Constitutional Jury Mandates
• APPENDIX II. The Johnson Decisions
• APPENDIX III. Louisiana Case Law
• NOTES
• BIBLIOGRAPHY
• INDEX