Circumventing Apodaca: An Equal Protection Challenge to Nonunanimous Jury Verdicts in Louisiana

Comment by Kyle R. Satterfield

In Louisiana, a jury is not required to reach a unanimous verdict in order to convict a defendant of a felony—only ten of twelve jurors need to concur to reach a verdict. Even if two jurors harbor reasonable doubt regarding the defendant’s guilt, the defendant is nonetheless convicted and sentenced to a term of imprisonment at hard labor. Louisiana is only one of two states that permit nonunanimous jury verdicts in criminal proceedings, with Oregon being the other.The United States Supreme Court upheld the use of nonunanimous jury verdicts in state criminal proceedings in the companion cases of Johnson v. Louisiana and Apodaca v. Oregon, even though the Court had previously held that jury unanimity was fundamental to the right to a jury trial enshrined by the Sixth Amendment. Four Justices held that the Sixth Amendment requires all jury verdicts, whether in federal or state courts, to be unanimous, while four Justices held that the Sixth Amendment does not require unanimity whatsoever. Justice Powell, writing alone, held that the Sixth Amendment requires jury verdicts to be unanimous in federal criminal proceedings, but not in state criminal proceedings. Justice Powell’s opinion is controlling, even though the other eight Justices agreed that the same standard, no matter what that standard is, should apply coextensively to criminal proceedings in federal and state courts. Although recently referring to Apodaca’s holding as “the result of an unusual division among the Justices,” the Court has not granted certiorari to recent challenges. The provision permitting nonunanimous jury verdicts in Louisiana first appeared in the constitution enacted in 1898, which was the result of the Louisiana Constitutional Convention of 1898 (1898 Convention). The 1898 Convention was called for expressly racist purposes, and this Comment argues that the provision implementing nonunanimous jury verdicts was likewise motivated by racially discriminatory intent. Relying on contemporaneous statements of the delegates at the 1898 Convention, historic commentary in a New Orleans newspaper, empirical research, and the opinion of a historian, this Comment argues that Louisiana’s policy of permitting nonunanimous jury verdicts violates the Equal Protection Clause under the framework espoused by the Court in Village of Arlington Heights v. Metropolitan Housing Development Corp.


90 Tul. L. Rev. 693 (2016)