Outlawing split jury verdicts would go against the U.S. Supreme Court’s previous guidance and would create havoc in Louisiana and Oregon, the only two states that have allowed such verdicts, according to a brief that Louisiana Attorney General Jeff Landry filed with the high court last week.

Landry brushes off concerns about racism being baked into Louisiana's split-verdict law, even though his brief concedes it was birthed in a notoriously racist 1898 constitutional convention, and extensive data gathered by The Advocate show that it continues to exert a disparate effect on black defendants.

Efficiency, not racism, was the reason for getting rid of the requirement for unanimous verdicts 121 years ago, Landry argues. Moreover, he says, a “pro-defendant” reform of 1973, requiring 10 of 12 votes rather than 9 of 12 to convict, further diluted any stain resulting from the law’s origins.

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On Oct. 7, Landry and members of a high-powered Washington, D.C., law firm will face off against lawyers representing Evangelisto Ramos, who was convicted of murder in a 10-2 vote by an Orleans Parish jury.

The Supreme Court in March decided to take up the case of Ramos v. Louisiana, after declining nearly two dozen previous invitations to reconsider a nearly half-century-old court ruling that allows states to continue convicting defendants by split verdicts.

The debate before the high court comes at an odd juncture. For starters, Louisianans had already decided to junk their outlier law — voting by a nearly 2-1 margin last fall to require unanimity in future trials — when the court agreed to hear the case.

On the other hand, Louisiana’s fix has yet to be fully implemented; it applies only to trials involving crimes that occurred on or after Jan. 1. And Oregon’s law remains intact.

Given how long the court’s ruling has stood, a reversal could have devastating consequences, Landry says. It’s his principal argument in support of the status quo.

“In addition to casting doubt on every pending felony trial in Louisiana for crimes committed before Jan. 1, 2019, a mandatory unanimity rule will have serious consequences for post-conviction review,” Landry’s lengthy brief warns. “Thousands of final convictions in Louisiana and Oregon could be upset if such a new rule were later declared retroactive.”

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The Advocate's analysis of approximately 1,000 cases resulting in convictions by Louisiana juries found that about 40 percent of them were not unanimously decided.

Oregon’s attorney general, Ellen Rosenblum, has yet to file a supporting brief, called an amicus brief, with the Supreme Court.

A ruling requiring unanimity — and overturning the landmark 1972 case Apodaca v. Oregon, in which the court narrowly endorsed split verdicts in state but not federal courts — might have a more pressing impact in Oregon than in Louisiana, given that Louisiana has already voted out its law.

Rosenblum has previously said she opposes Oregon’s split-verdict law, which took effect in 1934, nearly four decades after Louisiana became the first state to break with centuries of Anglo-Saxon legal tradition. A spokeswoman declined to say whether Rosenblum will wade into the debate.

Oregon lawmakers seemed poised earlier this year to put a measure before voters to change the state’s constitution to require unanimity, as Louisiana did last year. But the bill died in the final days of the legislative session.

Some Oregon legislators noted that the Supreme Court will likely decide the question before the ballot measure would have taken place. They said some of their colleagues preferred to wait and see how the court rules before asking voters to weigh in.

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Ramos’ petition has attracted 10 amicus filings from groups that support unanimous verdicts, including the NAACP, the American Civil Liberties Union, the Oregon Criminal Defense Lawyers Association and the attorneys general of eight states plus Washington, D.C.

The Supreme Court tends to afford great respect to principles it has upheld in the past — a principle known as stare decisis — but many experts in constitutional law believe the court is likely to overturn the Apodaca case. Otherwise, they reason, why did the court vote to revisit the question after 46 years?

Landry hopes otherwise. His brief seeks to hammer home the court’s traditional respect for its own past rulings.

“There is no ‘special justification’ for this court to abandon nearly 50 years of precedent holding that states have discretion to permit convictions by a non-unanimous vote,” Louisiana’s brief says.

Landry’s office didn’t prepare its extensive filing — which includes references to legal documents spanning centuries of Anglo-Saxon jurisprudence — on its own.

Landry engaged a well-known Washington law firm, Consovoy McCarthy, for the purpose of handling the appeal. The firm has taken on a number of high-profile political battles, notably representing President Donald Trump in efforts to keep his tax returns under wraps.

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Consovoy’s contract has a cap of $250,000. Records show the firm, whose lawyers bill Louisiana taxpayers at $385 an hour, have invoiced Landry’s office for $12,513 so far.

Because the Ramos case originated in New Orleans, the brief is also signed by Orleans Parish District Attorney Leon Cannizzaro and his chief appeals lawyer. Cannizzaro did not participate in the drafting of the brief, though he agrees that the law in place at the time of the trial must be defended, spokesman Ken Daley said.

While Landry was easily the most high-profile politician in Louisiana to oppose changing the split-jury law, Cannizzaro never took a public position on the question. The Louisiana District Attorneys Association, which represents the state’s 42 DAs, initially opposed changing the constitution to require unanimity, but as a movement to amend the rule gained steam, the LDAA decided to stay neutral.

A series published by The Advocate in 2018 traced the roots of Louisiana’s split-jury system to the 1898 constitutional convention, whose framers were seeking to disenfranchise black people in every way possible.

The newspaper’s reporting showed that the law continues to exert a disparate effect on black people: Not only are black defendants much more likely to be convicted on split verdicts than white ones, but the available data show black jurors are far more likely to wind up casting “empty votes” against conviction than white ones.

Landry’s brief largely brushes those concerns aside. While agreeing that the 1898 convention was awash in racist motives and legislation, the brief says that the primary goal of the split-jury law was efficiency. Moreover, it notes, the law was modified in a “pro-defendant” fashion in 1974 when Louisiana voters opted to require 10 votes rather than 9 for conviction. The discussion of the change did not involve any "objectionable appeal on the basis of race," the brief argues.

The case brought by Ramos’ attorney, Ben Cohen, relies less on the argument that the law specifically denies black people the equal protection afforded by the 14th Amendment. Rather, it argues that the Sixth Amendment, which outlines the right to a jury trial, requires unanimity, and that the 14th Amendment extended that right to all Americans.

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The court struggled mightily with those questions in 1972. In the end, five justices said they believed the Sixth Amendment’s guarantee of the right to a jury trial includes a requirement for unanimous verdicts in federal courts. But one of the five, Justice Lewis Powell, said he did not think the requirement extended to the states. The result was an unusual 5-4 ruling that said federal juries must be unanimous to be constitutional but state juries need not be.

Cohen, like Landry, has some additional legal horsepower on his team. Along with Cohen, Ramos' brief was signed by a lawyer from the venerable firm O'Melveny & Myers and three lawyers from the Stanford University Law School Supreme Court Litigation Clinic.

Staff writer John Simerman contributed to this report.